Employer argues alcohol and substance policy breached
The Fair Work Commission (FWC) recently dealt with the unfair dismissal claim of a worker who alleged his employer unjustly terminated his employment when he disclosed his medicinal cannabis prescription.
The worker started his employment with the employer in September 2018 as a mobile processing unit (MPU) operator. His responsibilities involved loading, operating, and calibrating an MPU for the preparation and distribution of explosives employed in various mining applications.
In September 2021, the operations superintendent and the worker's supervisor received text messages about the worker's work-related difficulties.
Worker sought medicinal cannabis prescription
A month later, the worker revealed his use of sleeping tablets but expressed concerns about the potential for addiction.
After being encouraged by his brother-in-law, who had been prescribed medicinal cannabis, the worker thought about using it to address his health issues. He then sought out a health professional who could prescribe him the said substance.
On 11 October 2021, the worker officially disclosed his medicinal cannabis usage to the employer, believing it best to maintain transparency. This disclosure was formally documented on a Worker Capacity Evaluation Form.
During this period, the employer expressed concerns regarding the documentation provided by the worker concerning his medicinal cannabis prescription.
The general manager of operations said the employer had concerns around specific aspects of the worker's documentation, including doubts about the existence of the prescribing pharmacy, unsuccessful attempts to contact the prescribing pharmacy, the absence of the prescribing doctor's contact details on the medication label, and the non-provision of the prescription itself.
The worker expressed that his disclosure of medicinal cannabis had left him feeling mistreated, distrusted, and subjected to discrimination. Consequently, he sought alternative guidance.
Site access revoked after cannabis disclosure
Following the worker's disclosure of cannabis use to BMA's on-site paramedic, BMA informed the employer that the worker's site access had been revoked. As a result, the employer suspended the worker while the investigation was conducted.
According to records, on 6 February 2023, the employer issued a show-cause letter alleging serious misconduct on the worker's part.
The allegation was that the worker had violated the Alcohol and Other Drug Policy outlined in his employment contract, which required him to disclose any prescribed medication that could impair judgment, coordination, or alertness to his manager or supervisor before commencing work.
The worker responded formally to the show-cause letter, explaining that he had adhered to the policy and was not impaired while at work.
Subsequently, on 13 February 2023, the worker's employment was terminated by the employer on the grounds that he had breached the policy by failing to report a prescription medication via email.
Worker argues taking cannabis ‘would not impair him at work’
After his termination, the worker argued that "he did not have an obligation to declare his prescription on the basis that the medication would not impair him at work."
He said that "he had been taking the prescribed cannabis on his rostered days off and stated that he would stop using the medication by 10 p.m. Mondays on his off week, leaving a window of 32 hours before the effects of the medicinal cannabis."
Due to this adjustment, he said he "would not be impaired at work, which complied with the policy," adding that the employer "had no authority to regulate out-of-hours conduct."
‘The employer had to account for risks in the workplace’
The Commission looked over the employer's disputed policy and said the worker was incorrect in his interpretation.
"Upon plain reading of the policy and the clause in the [worker's] employment contract, the [worker] made an incorrect assumption that there was no obligation for him to disclose his prescription medication if it would not impair him at work."
"The phrasing ‘may affect or impair’, ‘of any potential impairment’ and ‘could impair’ in the policy and wording of the employment contract are words that indicate the possibility of impairment rather than a measurable assessment of impairment," the decision said.
"It seeks to address the possibility of impairment when using the prescribed medication, even if that possibility is minimal or non-existent."
"Even though it appears that the [worker] took measures to ensure that there was no impairment before working on site with the [employer], the use of the prescription medication did have a possibility of impairment," it added.
"The fact that the [worker] was taking medicinal cannabis out of hours is not accepted, considering [he] was taking medicinal cannabis to deal with his anxiety and insomnia, which are risks that the [employer] had to account for in their workplace."
Thus, the FWC said the dismissal was not harsh, unjust or unreasonable. It then rejected the worker's application.
