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Drug use outside of work a valid reason for dismissal

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The Full Bench of the Fair Work Commission in Sharp v BCS Infrastructure Support Pty Limited has found that employees can be dismissed if they work in a safety-critical industry and breach their employer’s drug and alcohol policy, despite not being physically impaired in the workplace.

In Sharp, the applicant was employed by BCS to maintain and service various types of airport equipment as a part of BCS’ contract with Qantas at Sydney Airport. The maintenance constituted ‘Safety Sensitive Aviation Activities’ under the Civil Aviation Safety Regulations 1988.

BCS terminated the applicant’s employment with 4 weeks’ payment in lieu of notice after he produced a positive urine test for THC (the primary psychoactive ingredient in cannabis) at eight times the permitted threshold prescribed in BCS’ drug and alcohol policy.

The applicant brought an unfair dismissal claim arguing that his termination was harsh, unjust and unreasonable. He argued that there was no evidence to suggest he was impaired at work and that BCS had impermissibly terminated his employment for conduct that occurred outside of working hours.

In striking out the unfair dismissal claim, it was found that the applicant’s out of hours conduct in smoking marijuana was not the crux of the issue. Rather, the Full Bench observed that where an employee works in a safety-sensitive industry and breaches a drug and alcohol policy by attending work and providing a positive urine test, employers may be justified in terminating their employment, even in the absence of any apparent impairment.

Employers generally do not have a right to discipline employees for conduct that occurs outside of working hours. The result of this decision, however, can place employers in a stronger position to discipline employees who breach such a policy.

The employee’s length of service and unblemished record were insufficient to mitigate the decision to terminate the employee’s employment. The Full Bench held that the positive test result was a valid reason for dismissal and the termination was not harsh in the circumstances.

It is noteworthy that the Commission may not have reached the same conclusion had the employee been, for example, a financial planner (not employed in a safety-sensitive industry).

For further information regarding the effect of breaching employment policies as well as unfair dismissal, please contact our Employment Law and Workplace Safety team by email workplace@mst.com.au or by telephone+613 8540 0200.