Medicinal marijuana is a recognised therapeutic treatment. But workers need to be aware they can be sacked for taking medication prescribed by a doctor. A Brisbane stevedore recently lost an unfair dismissal claim against his employer, who sacked him after a random drug test detected marijuana in his system.
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00:00The dispute involved a worker called Michael Gauci, and he worked at Brisbane Port, and
00:06look, he'd worked there for 19 years, and he had an impeccable work record. And his
00:11role was to operate very heavy machinery, something called a shuttle carrier, which
00:15moves containers from one part of the port to the other. So, you know, very, very kind
00:21of important work. Now, in recent years, he had obtained from a doctor a prescription
00:31for medicinal cannabis, and he is asked by his employer to have a random drug test, and
00:37he fails that drug test, because it finds that there is a high level of THC or marijuana
00:43in his system. So he's sacked, and he's sacked for three reasons. The employer points to
00:48the drug and alcohol policy and says, look, you're not allowed to have this level of
00:53the drug in your system. And two, if you are on this kind of medication, you need to inform
00:59us that you're on this kind of medication, and you didn't. And three, they point to the
01:05fact that his treating doctor, when he gave him the prescription, said, you cannot operate
01:10heavy machinery if you're taking this medication. So for these reasons, he fails in his unfair
01:17dismissal case against his employer, the Brisbane Port. It's a complex situation, because there
01:24is no clear correlation between testing positive at a given point in time and impairment, because
01:34you can test positive for marijuana weeks or even months after you ingested it. So it's
01:43not like having a 0.05 breath test for alcohol, where you would have consumed the alcohol
01:49in the previous few hours, and your impairment will be clear. So recognising and acknowledging
01:58the ambiguity and the limitations of the science, what do we do? Well, we've come to a policy
02:05decision as a society that because the risks of operating heavy machinery are so high,
02:12we have to take a hardline, risk-averse attitude to the testing or positive reads for marijuana
02:21in your system. So for that reason, he is sacked. There is another, I guess, issue which
02:30comes to the fore in these kinds of cases, not necessarily in this one, but when should
02:36a worker be subject to a random drug test? And if you're a desk worker like you or I,
02:42it's not really appropriate to have those kind of intrusive drug tests, because even
02:48if you find that we are taking a drug or medication which might affect our alertness, it's not
02:56really going to have the same health and safety ramifications. So there have been unfair dismissal
03:00cases which have gone against the employer who has terminated a worker, because they've
03:07found that, well, no, actually, this isn't central to your role, and this is kind of
03:10an intrusion of privacy and goes to maybe your status as somebody living with a disability
03:16who needs medication. So it's a complex situation. But in this case, the unfair dismissal claim
03:23was dismissed by the court.