Fair Work Commission upholds termination based on medium to high levels of cannabis use

A Woolworths subsidiary, Woolstar, regularly conducts on-site drug and alcohol testing of its employees. 

It terminated the employment of a storeperson based solely on his testing positive for medium to high levels of cannabis.  Woolstar. 

The Fair Work Commission (FWC) held in its decision of 18 February 2014 that this factor alone represented "serious misconduct" that would justify dismissal. 

Notably, however, the Commissioner stated in his decision that "a lower concentration [of cannabis] . . . might attract some lesser disciplinary penalty and a remedial treatment program." 

The Commissioner also rejected the employee's argument that on-site drug testing is unlawful because there is no accredited testing regime in Australia, stating that "this proposition would translate into a circumstance that would render all workplace drug testing currently being conducted in Australia as void or invalid."

What are the ‘takeaways’ from this decision for employers?

1.         It is permissible for employers to conduct on-site drug and alcohol testing

2.         The employee's having medium to high levels of cannabis can constitute serious misconduct justifying summary dismissal

3.          Lower levels of cannabis may not constitute serious misconduct

4.          If you conduct on-site drug testing of your employees, it is important to have a clear policy in this regard, including the types of discipline that may imposed if employees test positive for various types of drugs.

Full decision of McCarthy v Woolstar


Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.