The Fair Work Commission (FWC) has decided to uphold the termination of a worker who tested positive for cannabis by Woolstar Pty Ltd, saying the levels of THC, the most active compound in cannabis, found in his system during a workplace drug test is “a matter for alarm”.
High levels of THC in the saliva
FWC Commissioner Ian Cambridge penned the decision in the case filed against Woolstar Pty by Shane Andrew McCarthy, who sued for reinstatement and payment for lost remuneration after failing drug test that led to his dismissal in July 2013.
McCarthy was driving a counterbalance forklift when he was chosen to undergo a random drug and alcohol test on-site. An oral-fluid test was administered, and it detected THC in McCarthy’s system. A confirmatory test was then conducted and revealed that McCarthy’s concentration of THC in his saliva was at 82 micrograms per litre. The result indicated what is considered to be a recent medium-to-high level of cannabis use.
“The confirmatory test result of 82 micrograms per litre would dramatically exceed any legal driving limit (if one existed) and would represent valid reason for dismissal”, Commissioner Cambridge says in his decision.
In penning the decision, Commissioner Cambridge dismissed arguments from an official of the National Union of Workers (NUW), of which McCarthy was a delegate, saying McCarthy was not under the influence of drugs at work. The NUW official also argued that since the random test had not been carried out by an accredited testing agency in accordance with the Australian Standard, the test result was invalid. Cambridge described the NUW official’s argument as “specious and illogical”.
“In effect, this proposition would translate into a circumstance that would render all workplace drug testing currently being conducted in Australia as void or invalid,” he said. “The current difficulties associated with formal accreditation of on-site drug testing are broadly irrelevant to the results of an analysis conducted in a laboratory.”
Anxiety about workplace drug testing
Nevertheless, Commissioner Cambridge recognised that many employees were understandably anxious about alcohol and drug testing at work. “Disproportionate and unsympathetic disciplinary reactions to positive and confirmatory test results naturally creates concern in the mind of some workers,” he said.
He also expressed concern about immediate dismissal being the automatic response by employers to workplace drug tests that come back positive.
“As a matter of general approach, drug or alcohol addiction or abuse issues which have been identified through workplace testing, should be recognised as problems that require a treatment program and not necessarily dismissal from employment.”