Nina Hoang: We are definitely, like I said before, seeing more and more examples of employees needing to use medical cannabis to treat different medical conditions.

Unfortunately, the reality is, there is no current reliable evidence regarding the actual impact of medical cannabis on employees or people. We know that there is some kind of impact, but there is no accurate tests so that you could pinpoint with certainty what is the level of impairment.

And then we get into the difficulty of the fact that if they need to use this to treat a medical condition, then it probably would constitute as a disability and therefore, a protected attribute under discrimination law.

So refusing to allow them to use the medical cannabis could be discrimination. But as we all know, it is possible to discriminate against someone if the reason you’re doing so is for health and safety.

And in this case, if we are aware that employees are ingesting medical cannabis and it is impairing their ability to work and their fitness to work, particularly if they are undertaking work where there’s high risk such as operating heavy planter machinery, you are certainly able to take steps to verify their impairment.

And if it’s clear that they cannot perform the inherent requirements of the job, you can take disciplinary action including termination on that basis because it’s not discrimination, because they cannot perform the inherent requirements of the job.

So I want to look at the case of Bunce and Pmfresh. It is not specifically on medical cannabis, but it is involving an employee who has ingested cannabis. So the employee in question was involved in a fork lift incident. So it was basically a safety incident.

No one was hurt, but it was clear they were impaired, they weren’t driving it safely, and they reversed into different pallets that they had previously placed on the floor. And when the employee did an investigation and questioned the employee, the employee admitted that they had ingested cannabis, or actually smoked marijuana the night before, and that they were a active user of cannabis for 35 years but had never smoked before attending to work.

So the employer said, “Look, I don’t think we need to send you to get tested because I’m pretty certain you would get a positive result.” And the employee agreed that it would definitely come back positive. And basically, the employer finalised the investigation and terminated the employee.

At the hearing with the Fair Work Commission, the employee said, “Look, there was no evidence of my level of impairment. The employer never did that.” And while the Fair Work Commission found that there were procedural deficiencies in this case, so the employer had done the investigation but had never informed the employee of the findings or really given them a chance to respond, had just terminated them.

In this case, there was enough level, sorry, enough evidence of the level of impairment. So the employee admitted that they would’ve tested positive to cannabis. They were showing clear signs that they were not able to… Like, they were struggling with their memory, and it was clear that they weren’t in a fit state for work.

So the commissioner in this instance said that although there were no accurate tests to be able to define with certainty the level of impairment, that was enough to constitute a valid reason. And the fact that the employee knew that they were impaired and were still driving heavy machinery definitely constituted serious misconduct. So the unfair dismissal was dismissed.

So it’s a really interesting topic, because you’re stuck with this high place where the current tools that we have to assess medical cannabis just really isn’t up to the standard that we need.

But what we would recommend that you do is monitor the trends regarding it and check if there is any updates in this and to use that. But please, please review your alcohol and drug policy and procedure. It should be very clear about when you can use it. If people are displaying signs of impairment, what you should do. So you should be able to get them, send them to get a medical clearance.

And if you are of the view that they need to be dismissed because one, they are not fit for work and they can’t do it and it’s a very high risk, then definitely you can take those steps.

But make sure you are complying with procedural fairness. You have established that there is no fitness for work, and you’ve got the medical evidence to support that and go down the inherent requirements route.

Okay, on to the case study.

Okay, so Gus was a forklift driver at Bare Ware Warehouse.

Terrible name, Andrew.

An underwear wholesaler. The warehouse was meant to be automated by 2023, but they ran out of cash and the old part still had employees picking and packing where forklifts moved in the same area as pickers.

Gus suffered from migraines and anxiety. Dr. Huduguru, a locum at the local medical centre, prescribed him medicinal cannabis. Gus loved it, as it worked.

Bare Ware Warehouse had a zero drugs tolerance for non-prescribed drugs that impaired judgement for plant operators. It also required plant operators to declare prescribed medications that could impair judgement.

The policy gave no threshold blood levels or examples of prescribed medications. Although it allowed the employer to direct testing, there had been no consultation on the policy and it was not referred to within employee contracts of employment.

His supervisor, Kel, directed Gus to stop driving and get off the forklift on Monday morning. Kel had seen him drive by and nearly hit a picker and noticed he seemed out of it and disorientated. When Gus got off the forklift, he slipped, wobbled and nearly fell. It was like he was out of it. Kel directed him to undertake a drug test. Gus told him to shove it and said he was going home and he would not be bullied by Kel. Kel directed him again to stay at work and be tested, but Gus kept walking.

Kel heard from others that Gus was on medicinal cannabis. So he sent him a text saying he was not to present to work until he had a doctor’s clearance stating he was free from cannabis, and he would be getting a show cause letter in any event, asking him why his employment should not be terminated.

Gus replied saying, “Stick it up your ‘a’. I will be taking two more cannabis tablets tonight because of you.”

So if Gus’s anxiety went through the roof as a result of Kel’s conduct towards him, would his workers’ compensation claim be accepted? Undoubtedly. So anxiety is a diagnosed condition, assuming he got the proof from the doctor. And in this case Kel’s conduct would not be considered reasonable management action. The actions he was taking were not once supported by the policy and it would never, ever be considered reasonable to send people information about disciplinary procedures through texts. The way that he handled also was very aggressive.

So reasonable management action. It has to be a proportionate response, and in this case it just definitely wasn’t.

Was the policy effective?

No. As it was made clear in the case scenario, it failed to properly define testing levels, methods of testing, description of when testing would occur, and no definition of impairment at all.

Also, the biggest thing is there was no consultation on the policy. So it would not be valid or enforceable. So any testing done on the policy would not be reasonable or a lawful reasonable direction.

Was it reasonable for Kel to give Gus the direction about medicinal cannabis?

So the fact that Gus was showing signs that he was not fit for work, you know, all those symptoms, he was wobbling, he wasn’t operating things well, as an employer, you are more than within your rights to immediately tell them to stop work.

Although he couldn’t order him to go test, because the policy was defective, he was well within his rights to tell Gus to go get a medical clearance, because he clearly was not fit for work.

Did Kel have to test Gus to terminate his employment?

That’s the strange thing about this process, which I guess Andrew wrote. He didn’t have to do any of that.

So the much simpler way of terminating in this case was the fact that Gus was clearly not fit for work. He was operating the forklift unsafely, he had a near miss, and almost seriously injured someone else.

So his actions would’ve fallen under serious misconduct, under regulation 1.07 of the Fair Work regulations anyway, ’cause it was an imminent safety risk.

So they could have just terminated him for serious misconduct without having to go down this testing and impairment and intoxication route.

Was Bare Ware at risk of a safety prosecution if it knew others may be using medicinal cannabis but did not update, consult, and fix its policies and processes?

Yes, because if it’s aware that there’s a risk breach in its policies and isn’t able to order testing, then there’s no way for it to ascertain the level of impairment of these workers. And if anyone is impaired, and then ends up hurting someone else, and they’re aware of a risk and didn’t fix it, there’s real risk of reckless endangerment in those cases.

When would Gus be fit to return to work if he stopped using cannabis?

So this is, I would say probably the trickiest question because the answer is it’s pretty unclear. At the moment, there is no accurate testing as to the level of impairment. You’d have to wait for a doctor to give that clearance. And the current studies say that it stays in your system for quite a long time.

We’d say probably three or four days at least he would need. But at that case, then you start veering into, well, if you stop them from using it, and they need it for the medical condition, is that then discriminatory?

But also if it’s impairing their work, then they can’t perform the inherent requirements of the job.

So really just wanted to flag this and raise it to your attention, because it is a more common issue we’re seeing. But it’s definitely a watch this space topic as we see medical improvements improve the testing so that it can be more accurate.

So thank you for joining me this week. Please give me a thumbs up. But please let Andrew know I didn’t do well, so that he has to come back.

But yeah, we’ll see you next week. Thank you. Bye.