The Case

Sharp v BCS Infrastructure Support Pty Ltd (2014)

BCS held a contract with Qantas at Sydney Airport to maintain and service some of its equipment. The work constituted Safety Sensitive Aviation Activities (SSAA) under the Civil Aviation Safety Regulations 1998 (Cth). BCS had a drug and alcohol policy in place. On 31 January 2014, the operator of Sydney Airport required that all BCS employees and subcontractors who performed SSAA work be drug tested by 21 February 2014.

Mr Sharp was a team leader employed by BCS. On Monday 10 February 2014, Mr Sharp was asked to undertake a drug and alcohol test. Mr Sharp informed his supervisor that he had consumed marijuana the prior Saturday. He undertook the test by providing a urine sample.

Mr Sharp tested positive for marijuana and attended a disciplinary meeting with his union representative. He was given an opportunity to provide reasons why his employment should not be terminated.

In his defence, Mr Sharp:

• admitted he had made a serious mistake and had smoked one joint on the Saturday prior to the test;
• claimed he was not a regular user;
• said he no longer felt impaired;
• was prepared to submit to random and ongoing testing, or transfer to another site; and
• said that his long service of employment and otherwise good work performance should be considered.

Although Mr Sharp was honest in admitting to using marijuana prior to the test, BCS dismissed Mr Sharp and provided him with 4 weeks’ pay in lieu of notice. Mr Sharp commenced unfair dismissal proceedings.

The Verdict

The Fair Work Commission (FWC) found that the dismissal was fair. It ruled that whether Mr Sharp was suffering from impairment at the time or was a habitual drug user beared no relevance.

The fact that BCS had a drug and alcohol policy, and Mr Sharp had breached that policy, was a valid reason for his dismissal.

Mr Sharp appealed the decision, asserting that the dismissal was harsh because he did not consider himself impaired at the time he attended work, and therefore posed no risk to anyone’s health or safety.

However, the Full Bench of the FWC upheld the original finding that the dismissal was not unfair, unjust or unreasonable. This was because, despite Mr Sharp not being trained in BCS’s drug and alcohol policy, he had received training in Qantas’s drug and alcohol policy, which was substantially similar to BCS’s policy. Mr Sharp therefore had knowledge of BCS’s policy and was aware of the consequences of breaching it.

A critical consideration in assessing whether or not the dismissal was unfair was that there was no direct scientific test for impairment arising from cannabis use. For this reason, the Full Bench found that cannabis being detected in an employee is enough to justify disciplinary action, including dismissal, if that is outlined in the employer’s drug and alcohol policy.

The Lesson

This case is one in a line of recent cases finding that employers can dismiss employees for drug and alcohol use, including cannabis, which has traditionally been considered a ‘soft drug’.

This is because cannabis use can impair employees at work, and affects each individual differently. While there may be mitigating factors, they do not necessarily make the reason for the termination unfair or invalid.

To reduce the risk of an unfair dismissal claim in relation to drug use, ensure that:

• you have a written drug and alcohol policy;
• the policy, and the consequences of breaching it, are known to employees;
• employees receive written notification of any policy changes;
• employees receive training in the policy; and
• employees’ training is repeated annually, or more frequently if there are major amendments or repeated workplace breaches.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.