​'Clerical' job and COVID stress didn’t excuse smoking cannabis

Facts of case

The employee was a stevedore at a container terminal. After a work shift, he was randomly selected for an alcohol and drug test under the employer’s testing policy. He tested non-negative for a compound (THC) formed by the consumption of cannabis. The employer stood him down, pending a laboratory test, which confirmed the previous result. After attending a show cause meeting, he was dismissed.

His job was to monitor the computer system that directed automated cranes to containers, which then loaded and unloaded the containers onto trucks or organised them within the container yard. If the computer system malfunctioned, he would need to manually override it, which regularly occurred. The employee claimed that this meant that he did not cause any safety-related problems for himself or other employees. Further, he had only smoked a small quantity and did not feel in any way impaired. No one had questioned his work performance that day or noticed anything abnormal. During the previous fortnight, he had smoked marijuana because of stress and anxiety caused by a lengthy history of medical depression and exacerbated by the then (2021) impact of COVID-19 on his family circumstances.

Decision

The FWC, however, found that he was well aware of the employer’s policy, had smoked cannabis daily for two weeks, and could have sought help from the employer’s Employee Assistance Program to deal with his situation. This amounted to serious misconduct, and his length of service (25 years) and the previous record did not mitigate that. Long service was not an excuse for blatant breaches of employer policy that had potential safety consequences.

Given the proximity of smoking time to his work shift, and the test results, the “out of hours” defence was irrelevant. He breached the employer’s policy while he was at work. As the employee had continued to deny that his cannabis use, followed by attending work, had posed a potential safety risk, reinstatement was considered impracticable.

The dismissal was not unfair in the circumstances. 

What this means for employers

This decision illustrates the point that, where a blatant breach of safety policy occurs, the impact of a dismissal on an employee’s personal circumstances is unlikely to make the decision unfair and allow a claim to succeed.

As the FWC put it: “Ultimately, a significant period of service cannot be a 'licence' for significant breaches of policy that amount to serious misconduct, and particularly when that indiscretion has potential consequences for the safety of others... length of service is not determinative in overturning dismissal matters”.

Read the judgment: Mr Craig Hancock v DP World Brisbane Pty Ltd [2022] FWC 1406 (3 June 2022)