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July 2020

Dismissal for possessing marijuana equipment

Dismissal for possessing marijuana equipment

The Case

Brown v South Coasts Trucks and Machinery (2020)

Mr Brown, a sales representative for South Coasts Trucks and Machinery (SCTM), was summarily dismissed when his employer found marijuana equipment, including hydroponic lamps and dehydrator, in the workplace.

Before dismissing Mr Brown, SCTM wrote to him, directing him to attend a meeting to provide a response to the allegations. Mr Brown’s doctor wrote to SCTM to advise that Mr Brown could not attend the meeting as he was suffering from anxiety and depression.

SCTM then directed Mr Brown to respond to the allegations in writing. Mr Brown said he was preparing a statement as part of his workers’ compensation claim and that this would serve as his response.

Thereafter, SCTM summarily dismissed Mr Brown on the basis it was satisfied he had the marijuana equipment in the workplace, and he had failed to follow lawful and reasonable directions.

Mr Brown filed a claim for unfair dismissal.

The Verdict

Mr Brown argued before the Fair Work Commission (FWC) that there was no evidence he had engaged in illegal activity. SCTM argued that in the absence of a reasonable explanation for the equipment being on site, it had the ability to summarily dismiss Mr Brown. Mr Brown had the opportunity to provide an explanation and had refused to do so.

The FWC agreed with SCTM and dismissed Mr Brown’s application. During the hearing, it became known that Mr Brown had previously been charged with cultivating marijuana. The FWC stated that SCTM had provided adequate alternative means to Mr Brown to respond to the allegations, especially in light of the fact that Mr Brown was well enough to enquire about his leave entitlements and commission payments.

The FWC held that SCTM was not required to wait until receipt of the workers’ compensation statement, especially when there was no indication given by Mr Brown when that might be provided.

The Lessons

The decision demonstrates the importance of not making the decision to terminate employment before giving your employee the opportunity to respond to allegations. When an employee is unable to participate in the process in the normal way, it is important to consider reasonable alternatives to provide the employee with an opportunity to respond to the allegations. If the employee fails to cooperate, you should take care when proceeding with the dismissal. While such a process is not risk-free, the FWC agreed in this case that the employer had a valid basis to dismiss the employee, and had acted fairly and reasonably.

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