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Dilemmas of Medical Cannabis -Adam Mills V Glamorgan Spring Bay Council

The dilemma of medicinal cannabis in the workplace is a growing issue for both employers and employees, particularly when it comes to drug testing, workplace safety, and unfair dismissal claims under the Fair Work Act 2009. The case of Adam Mills v Glamorgan Spring Bay Council highlights some of these challenges, as it dealt with an unfair dismissal claim under s.394 of the Act.

Key Dilemmas for Employers

  1. Balancing Workplace Safety with Employee Rights
    • Employers have a duty to ensure a safe working environment under workplace health and safety laws.
    • If an employee is taking medicinal cannabis (which contains THC, a psychoactive compound), employers may worry about impairment and safety risks, especially in high-risk industries.
    • However, medicinal cannabis use is legally prescribed, meaning employers must balance safety concerns with anti-discrimination laws and employee rights.
  2. Workplace Drug Testing Challenges
    • Most drug tests detect THC levels, but they do not measure actual impairment, as THC can remain in the system for days or weeks.
    • This makes it difficult for employers to fairly assess whether an employee is actually impaired at work or simply has residual THC from legal medicinal use.
    • A positive test result could lead to disciplinary action or termination, even if the employee is not impaired at the time.
  3. Legal Risks in Unfair Dismissal Cases
    • If an employee is dismissed for testing positive for THC despite having a lawful prescription, they may claim unfair dismissal under the Fair Work Act.
    • Employers must show valid reasons for termination, including evidence of impairment or a clear breach of workplace policy.
    • In cases like Mills v. Glamorgan Spring Bay Council, the Fair Work Commission (FWC) assessed that the dismissal was harsh, unjust, or unreasonable as alternate arrangements were not considered.

Key Dilemmas for Employees

  1. Risk of Losing Employment Due to Medication
    • Employees using legally prescribed medicinal cannabis risk losing their job if their employer enforces zero-tolerance drug policies.
    • Even if they are not impaired at work, a positive test result may lead to disciplinary action or dismissal.
  2. Navigating Workplace Policies and Disclosure
    • Employees may face a tough decision: Should they disclose their medicinal cannabis use to their employer?
    • If they do disclose, they may face stigma or workplace discrimination.
    • If they don’t, they risk failing a drug test and being dismissed.
  3. Proving Fitness for Work
    • Employees may need to provide medical evidence to prove they can safely perform their job while using medicinal cannabis.
    • However, many employers lack clear policies on how to assess medicinal cannabis use fairly.

How the Fair Work Act Applies

  • If an employee is dismissed for testing positive but was not actually impaired, they may argue unfair dismissal under s.394.
  • Employers must provide clear evidence of impairment or workplace risk, not just a positive test result.
  • FWC decisions depend on case specifics, including workplace policies, job safety requirements, and how the dismissal was handled.

Conclusion

The medicinal cannabis dilemma presents a legal and ethical challenge for both employers and employees. Employers must balance safety concerns with legal rights, while employees must navigate workplace policies that may not fully account for prescribed medicinal cannabis use. Clearer legal guidelines and improved testing methods are needed to fairly address this issue in the workplace.

Contact us for a policy review to ensure that you navigate this tricky area with caution.