The highs and lows of medicinal cannabis in the workplace – when can employers take action?

Introduction

Since 2016, medicinal cannabis has been increasingly recognised in Australia as a legitimate therapeutic option for the treatment of various medical conditions such as chronic pain and anxiety.

Accordingly, the increased prevalence of medicinal cannabis usage has raised various challenges for employers, particularly where impairment and safety implications are concerned. Medicinal cannabis prescribed by a medical practitioner should be regarded in the same manner as other prescription medications that may cause impairment. Terminating an employee solely due to their consumption of prescription cannabis can expose an employer to potential claims for unfair dismissal or discrimination.

We previously reported on the risks and challenges faced by employers with respect to medicinal cannabis in the workplace in our 2023 article.

Recent decisions by the Fair Work Commission (FWC) provide further useful guidance for employers. They demonstrate that appropriate workplace policies and safety concerns can still justify disciplinary action against an employee who has consumed medicinal cannabis without their employer’s permission.

Safety concerns and disclosure – Gauci v DP World Brisbane Pty Limited [2024] FWC 2351

Mr Gauci, a stevedore working for DP World, had been consuming medicinal cannabis that was prescribed to treat a mental health condition. The company’s drug and alcohol policy expressly prohibited employees from attending work with drug or alcohol levels above a certain threshold. It required employees to notify DP World if they were required to take medications that could affect their alertness. Mr Gauci did not disclose his prescription or use of medicinal cannabis to DP World.

Mr Gauci was selected for a random drug test, which revealed that his tetrahydrocannabinol (THC) levels, the principal psychoactive constituent found in cannabis, were 10 times higher than the upper limit set by the company’s drug and alcohol policy. Following a disciplinary process, Mr Gauci was dismissed for serious breach of both the policy and his employment contract.

Mr Gauci made a claim for unfair dismissal, maintaining that he was not impaired and was able to perform his duties without risk to health and safety. However, this was held to be of little relevance, given that DP World’s drug and alcohol policy was not based on levels of impairment, but on cut-off limits for the presence of prescribed drugs.

The FWC upheld Mr Gauci’s dismissal for breaching DP World’s drug and alcohol policy, finding that:

• the policy was lawful and reasonable, and Mr Gauci was aware of his obligations under it and the potential disciplinary consequences of breaching it
• Mr Gauci’s work was of a safety-critical nature and his failure to disclose his cannabis usage impacted DP World’s ability to take reasonable steps to ensure the safety of its workers
• Mr Gauci had signed a patient consent form acknowledging that he must not drive or operate heavy machinery while taking medical cannabis, which should have alerted him to the safety risks of its consumption
• Mr Gauci’s deliberate failure to disclose his prescription and use of medicinal cannabis meant that DP World was unable to undertake a risk assessment or consider any reasonable adjustments it might have made to accommodate the Mr Gauci’s condition.

This is not the only recent case in which a failure to disclose medicinal cannabis usage was sufficient to terminate employment. In the earlier case of Haigh v Platinum Blasting Services Pty Ltd [2023] FWC 2465, a mineworker’s employment was terminated for failing to disclose his use of prescribed medicinal cannabis, despite not failing any drug tests and leaving a 32-hour window before starting work.

Mr Haigh initially disclosed using prescription cannabis, but stopped using it and switched to a different medication after his employer expressed concerns. He later resumed the use of medicinal cannabis without informing his employer. After a near-miss incident at work, Mr Haigh was required to undergo a drug test, at which point he disclosed the cannabis usage. He was later dismissed.

Mr Haigh’s employment contract and his employers’ drug and alcohol policy both required him to inform his employer if he was taking any prescription medication that could impair his ability to work safely. Despite Mr Haigh’s attempts to reduce the risk of an impairment, it was clear to the FWC that Mr Haigh had breached the drug and alcohol policy, as consumption of the medicinal cannabis still carried the risk of impairment. The fact that Mr Haigh was previously aware of his disclosure obligations, as well as the safety critical nature of his role, resulted in the FWC upholding his dismissal.

These cases highlight the importance of maintaining appropriate drug and alcohol policies and ensuring that employees are aware of their obligations under them.

Avoiding drug tests altogether? Candido v Scalzo Trading Co Pty Ltd [2024] FWC 2129

What about when an employee does not expressly refuse a drug test, but avoids taking it for other reasons such as being sick? In this case, a forklift operator, Mr Candido, was informed by his manager during his shift that he was required to undergo a drug test. Mr Candido responded that he had accidentally defecated in his trousers and had to go home. Mr Candido went home without completing the drug test and despite the manager’s warning that this would be a bad idea.

At this time, Mr Candido was on his first and final warning for breaching the company’s drug and alcohol policy as he had returned a positive result for a drug test two months earlier. The policy provided that attempts to avoid a drug test would be treated as a breach of the policy and that a second breach of the policy could lead to summary dismissal.

After trying and failing to contact Mr Candido, the employer concluded that he had left work to avoid the drug test, and dismissed him. Mr Candido then filed an unfair dismissal claim against the employer.

Despite hesitantly accepting that Mr Candido did have the accident in his trousers as claimed, the FWC found that avoiding the drug test was the clear and intended consequence of leaving the work site and that Mr Candido accordingly breached the company’s drug and alcohol policy.

The FWC further held that dismissing Mr Candido was not a disproportionate response because:

• embarrassment did not make it necessary for Mr Candido to go home without completing the drug test – he could have cleaned himself in the bathroom before completing the test or he could have gone home and returned to complete it
• Mr Candido’s work involved operating a forklift, which raised safety concerns around the risk of impairment
• the company’s drug and alcohol policy was not only reasonable but also lenient, in that it provided Mr Candido with a second chance after he failed a drug test two months earlier
• Mr Candido’s actions demonstrated a lack of concern for the integrity of the drug testing process.

The FWC upheld Mr Candido’s dismissal, stating that a failure to comply with a reasonable drug and alcohol policy is unacceptable because it undermines efforts to keep workers safe and exposes the employer to risk.

Key takeaways for employers

The FWC decisions remind employers who wish to manage medicinal cannabis use among their workforce to maintain reasonable workplace drug and alcohol policies. This can include requiring disclosure of medicinal cannabis prescriptions or consumption, as well as evidence from a medical practitioner of the employee’s fitness to work. Restrictive policies will be more reasonable where work health and safety is a relevant factor.

Further, employers should make sure that employees are reasonably aware of their obligations under policies and the potential disciplinary consequences of breaching them.

Of course, employers must also ensure that a proper disciplinary procedure is followed to protect against unfair dismissal claims on the basis of procedural unfairness.

If you have any questions about managing the use of medical cannabis in the workplace or need assistance with updating your policies or procedures, please contact a member of our workplace relations and safety team.