Zero drug & alcohol tolerance – yes!

A recent case of Sharp & BCS Infrastructure Support Pty Ltd demonstrates that where safety-critical work is involved, and testing for impairment related to a particular substance is not a precise science, a zero tolerance policy for any positive result may be appropriate.

Sharp performed safety-sensitive work, servicing airport equipment such as baggage carousels for BCS Infrastructure Pty Ltd.   Sharp was dismissed after undertaking a random drug and alcohol test and tested positive for cannabinoids eight times the limit stated in the employer policy.  Sharp admitted to smoking marijuana on the weekend but said he did not feel impaired when he arrived at work on Monday.

Sharp lodged an unfair dismissal claim however this was rejected as it was held that a positive test result was a valid reason for dismissal and BCS Infrastructure did have a right to dismiss as Sharp presented for safety-sensitive work with cannabinoids in his system that significantly exceed the permitted level.

Sharp then appealed to the Full Bench.  The full bench refused Sharp permission to appeal and stated that it found no error in the decision.  It was recognised that there is no scientific testing method available for accurately assessing impairment caused by the use of cannabis.  The Full Bench however observed that where the degree of impairment caused by a particular drug may be difficult to assess, an employer may be justified in dismissing an employee for any positive test result which breaches its drug and alcohol policy, particularly when there are significant safety consequences.

We would always caution employers on a zero tolerance policy due to the practically, taking into consideration the risks involved of course.  The specific wording needs to be carefully considered as this is what will be considered in any challenge.

 

Sharp v BCS Infrastructure Support Pty Ltd [2015] FWCFB 1033