[1] Owen Sharp v BCS Infrastructure Support Pty Limited (C2014/7029). VICE PRESIDENT HATCHER. SENIOR DEPUTY PRESIDENT HAMBERGER. COMMISSIONER ROBERTS. SYDNEY, 27 FEBRUARY 2015 Appeal against decision [2014] FWC 7310 and Order [PR556674] of Vice President Catanzariti at Sydney on 15 October 2014 in matter number U2014/634


I initially reported the original decision in Edition 9 (25/10/14) where the applicant’s dismissal arose from a drug and alcohol test at work which showed that he had tested positive for cannabinoids at a level of 112µg/L, which was in excess of the permitted threshold of 15µg/L. In summary, the Vice President found that there was a valid reason for Mr Owen’s dismissal, that he was accorded procedural fairness, and that his dismissal was not harsh, unjust or unreasonable, and therefore dismissed his application.


The FB, in rejecting the application for appeal, considered:


“As the Vice President correctly found, the issue in this case was not Mr Sharp’s “out of hours” conduct in smoking cannabis, but rather that he attended for work (which involved the performance of SSAA) with a level of cannabinoids that was above (and very significantly above) the permitted threshold. That was “at work” conduct. Undoubtedly from Mr Sharp’s perspective it seems harsh that he was dismissed as a result of this in circumstances where he did not consider himself to have been impaired or to have represented a risk to anyone’s safety. However, a critical consideration in assessing whether a dismissal in these types of circumstances was unfair is the fact that there is currently no direct scientific test for impairment arising from the use of cannabis (my emphasis).


“Apart from reliance upon the employee’s own explanation about the matter, which will probably not be verifiable, the employer will therefore not be in a position properly to assess whether the employee is impaired as a result of cannabis use and therefore represents a threat to safety. For that reason, employer policies which provide for disciplinary action including dismissal where an employee tests positive for cannabis may, at least in the context of safety-critical work, be adjudged to be lawful and reasonable. Likewise, depending on all the circumstances, it may be reasonably open to find that a dismissal effected pursuant to such a policy was not unfair.”

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