Unfair dismissal and medicinal cannabis

This passage from an unfair dismisal case decision deals with the use of medicinal cannabis and whether a dismissal for breaching an employer’s policies and procedures about the issue can constitute a valid reason for an emplopyee’s dismissal.

“Consideration
[39] Section 387 of the Act provides the criteria and considerations the Commission must
take into account when deciding if the dismissal was harsh, unjust, or unreasonable. As required
by the Act, I consider the following:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or
conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the
person had been warned about that unsatisfactory performance before the dismissal;
and
(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
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(a) valid reason for the dismissal;
[40] It is well established that the factual basis for the reason for dismissal will not of itself
demonstrate the existence of a valid reason.36 It must, as s.387(a) makes clear, be a valid reason
for dismissal. To be a valid reason, the reason for the dismissal should be “sound, defensible or
well founded”
37 and should not be “capricious, fanciful, spiteful or prejudiced.”
38 As
summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must
be a justifiable response to the relevant conduct or issue of capacity”.
39 The Commission must
consider the entire factual matrix in determining whether an employee’s termination was for a
valid reason.40
[41] The reason for dismissal was that the Applicant had failed to comply with the Drug and
Alcohol Policy. The three contentions raised by the Applicant that there was no valid reason
are:
1. The Applicant did not have an obligation to declare his prescription,
2. The Respondent made no attempt to verify if the Applicant could be impaired at work
and;
3. the Applicant’s removal of site access was not a valid reason for dismissal.
[42] The policy states:
All Platinum Blasting Services employees, visitors and contractors who are required to
take prescription or over the counter medication, that could impair their judgement,
coordination or alertness must inform their immediate Manager/Supervisor before
commencing work. Before taking any medication, either prescribed or over the counter,
advice must be sought from a doctor or pharmacist. 41
[43] A similar requirement is outlined in the Applicants employment contract at clause 27.5:
You must inform Platinum if you are taking any prescribed medicines which may affect
or impair your ability to work safely. In particular, you will inform Platinum of any
potential impairment to your ability to safely operate machinery or other such
equipment.42
[44] The Applicant and Respondent agree that the question of relying on the Policy as a valid
reason of dismissal is dependent on the objective interpretation of ‘could impair’.
43
[45] The Applicant argued that his use of medicinal cannabis outside of work hours would
not have impaired him at work if he had not used cannabis within 30 hours of being in the
workplace and therefore did not have an obligation to declare the prescription cannabis to his
employer.44
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[46] Upon plain reading of the Policy and the clause in the Applicant’s employment contract,
the Applicant made an incorrect assumption that there was no obligation for him to disclose his
prescription medication if it would not impair him at work.
[47] The phrasing ‘may affect or impair’, ‘of any potential impairment’ and ‘could impair’
in the policy and wording of the employment contract are words that indicate the possibility of
impairment rather than a measurable assessment of impairment. It seeks to address the
possibility of impairment when using the prescribed medication even if that possibility is
minimal or non-existent.
[48] Even though it appears that the Applicant took measures to ensure that there was no
impairment before working on site with the Respondent, the use of the prescription medication
did have a possibility of impairment. Dr Abdul Jabar’s letter on 27 October 2021 indicated that
the Applicant was not to use medicinal cannabis before or during working period which
indicated possible impairment of using cannabis.45
[49] At first instance, the Applicant did disclose his use of medicinal cannabis to the
Respondent on 12 October 2021. It was recorded on BMA’s records that the Applicant had a
prescription of medicinal cannabis (THC 20% – 25% (10mg)).
[50] The primary issue which the Applicant faced was that the Applicant had informed that
Respondent that he was seeking an alternative to using medicinal cannabis, and that he was no
longer using the medicinal cannabis.
46
[51] The timeline of the Applicant’s disclosure of his prescription medication is as follows:
[52] On 16 October 2021, the Applicant was informed by Mr Shane Phillips (General
Manager for the Respondent) that the Respondent needed to be made aware of any administered
medication which would be facilitated through a ‘medical management plan’ when the
Applicant had first disclosed the medical cannabis at the Peak Downs mine. At this stage, the
Applicant was put on notice regarding the need to disclose any medication that may cause risk.
[53] On 24 November 2021, the Applicant was prescribed fluoxetine by Dr Benjamin
Chapman which stated that if there were side effects he is to return to his GP for follow-up. Dr
Chapman had completed a worker capacity evaluation where it was stated that Mr Haigh was
to take the medication as prescribed by the treating medical practitioner. The Respondent
records Dr Chapman as his treating medical practitioner, not Dr Abdul Jabar. It was this stage
that it was understood the Applicant’s use of medicinal cannabis had ceased.
[54] On 29 November 2021. The Applicant provided a certificate of clearance. It stated,
‘Please refer to Dr Absul Abdul Jabar’s documentation.’
47
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[55] On 2 December 2021, Mr Haigh had received an email stating that ‘Any change what
so ever or side effects must be reported to your Supervisor, and Platinum Blasting’
[56] Furthermore, the Applicant had signed a Medical Management Plan which stated he
would strictly adhere to the Medical Management Plan:
Should Sheldon experience any side effect(s) as explained by his treating doctor, he
must immediately report the side effect(s) to his Supervisor and Platinum Blasting and
seek advice from his treating doctor.
Should there be any change to this medication (increase/decrease/frequency of dose
etc), additional medication taken (either prescribed or over the counter), or any other
change that may affect your ability to perform your role/suitability for work, Sheldon
must notify Platinum and his Supervisor immediately.
48
[57] The Respondent had made several attempts to notify the Applicant regarding his
requirement to disclose any prescription medication. The Applicant had a clear obligation to
declare his prescription.
[58] The Applicant had still been using the medically prescribed cannabis without disclosing
this to the Respondent. I do not accept that the Clearance Letter indicated that Mr Haigh was to
use the prescribed cannabis considering the fact that Dr Chapman had filled out the Medical
Management Plan indicating him as the prescribing doctor, not Dr Abdul Jabar with no clear
indication on referring to Dr Jabar’s documentation. It appeared to be a phrase without referring
to any particulars. Dr Chapman did not provide a letter nor had any evidence been provided to
the Commission regarding his acknowledgment of a prescription of medicinal cannabis.
[59] The fact that the Applicant was taking medicinal cannabis out of hours is not accepted,
considering the Applicant was taking medicinal cannabis to deal with his anxiety and insomnia
which are risks that the Respondent had to account for in their workplace. It was evident through
the Medical Management Plan that the Applicant was dealing with these issues and these
medications would affect his performance at work.
[60] The Applicant’s removal of site access was consequential from his failure to declare his
resumed use of medicinal cannabis. It is ancillary to the valid reason that the Applicant did not
disclose his prescription medication.
[61] I do not accept the submission made by the Applicant that the Respondent made no
attempt to verify if the Applicant could be impaired at work and therefore no valid reason for
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dismissal. It was evident that the Respondent did take steps through its medical declaration
process from October 2021 to December 2021.
[62] There was a valid reason for dismissal as the Applicant did not disclose to the
Respondent using medical cannabis to treat his anxiety and insomnia which was a breach of the
Policy and a clause in his employment contract.”

Haigh v Platinum Blasting Services Pty Ltd [2023] FWC 2465 delivered 26 September 2023 per Lake DP