Crafting Effective Workplace Policies in the Face of Complex Challenges
In today?s ever-evolving work environment, developing comprehensive policies on drugs and alcohol presents a complex challenge. Below is a summary of key considerations and recent legal findings to guide your approach.
Key Considerations
1. ?Skills in Demand" Visa in Australia
While rigorous testing procedures following Australian Standards are
recommended, no easily administered test exists, particularly for
substances like cannabis, where positive results can persist long after
consumption.
2. Medicinal Cannabis concerns
Many Australian medicinal cannabis products lack approval from the
Therapeutic Goods Administration (TGA), creating challenges in
verifying their potency and purity. Additionally, the impact of
Cannabidiol (CBD) on impairment remains unknown, adding
complexity to policy development.
3. Policy coverage issues
Policies lack clarity in objectively detecting CBD and THC due to the
absence of regulatory guidance. Employers also face challenges in
obtaining reliable evidence regarding the impairing effects and
duration of medicinal cannabis. Drug and alcohol policies alone do
not justify dismissal; procedural fairness is essential.
4. Discrimination considerations
Discrimination against individuals using medicinal cannabis may be
deemed unlawful, underscoring the importance of fairness in
dismissals. Approaching individuals under the influence requires skill
and sensitivity, taking potential medical issues or distress into
account.
5. Ongoing Policy reviews
Regular policy reviews, involving employee consultation, education,
clear communication of consequences, consistent application, and
monitoring, are vital for ensuring the effectiveness and relevance of
workplace policies.
Recent Legal Findings: Navigating Workplace Dismissals
In recent legal cases, the Fair Work Commission (FWC) has shed light on the complexities surrounding medicinal cannabis as well as the treatment by the FWC of drugs and alcohol in the workplace.
Are you in a high-risk Industry? Or face elevated risk factors?
Some employers might be surprised by what is considered a ?safety critical role,? as they span across various sectors. Whilst the role itself does not have to be safety critical in and of itself, if it includes elements that can be considered high risk, it may fall into this category.
In Sheldon Haigh v Platinum Blasting Services Pty Ltd [2023] FWC 2465, Mr. Sheldon Haigh's dismissal from a safety-critical role brought attention to the challenges associated with medicinal cannabis use in the workplace. Despite taking precautions, Mr. Haigh faced termination for not updating his employer about changes to his medical regime, including medicinal cannabis. The FWC upheld the dismissal, emphasizing the potential for impairment with medicinal cannabis. The case highlighted the importance of interpreting employer policies, specifically those requiring disclosure of medication that "could impair" abilities.
Is Zero tolerance enough?
In Sydney Trains v Gary Hilder [2020] FWCFB 1373, an employee's unfair dismissal raised concerns about policy alignment. The employee violated a Drug and Alcohol policy and Code of Conduct, facing termination. The FWC found the dismissal unjust, emphasizing the inconsistency between the employer's "zero tolerance approach" and its disciplinary policies. This case underscores the need for clear policy communication, ensuring terms are well-known to employees, and considering mitigating circumstances before dismissal.
Is tailoring to your workplace the key?
The case of Hancock v DP World Brisbane Pty Ltd [2022] FWC 1406 focused on the legality of an Alcohol and Other Drugs (AOD) Policy in a safety-critical role. The employee's high-range alcohol reading at work justified dismissal, with the FWC deeming it reasonable. The emphasis on tailored drug and alcohol policies, clear communication of consequences, and regular acknowledgment by employees highlights the significance of policy alignment with workplace practices.
What is the impact on your business?
Employers are advised to review policies related to drugs and alcohol in the workplace, taking into account the following considerations:
- Policies should comprehensively address risks associated with drug and alcohol use, providing clear guidelines for approaching workers under the influence.
- Clear and transparent reporting procedures need to be established, along with educational initiatives that highlight the potential impacts of substance use on individuals in the workplace.
- Develop a risk assessment procedure, with special attention given to evaluating the effects of medicinal cannabis on an employee?s fitness for work.
- Implement support mechanisms, such as Employee Assistance Programs (EAP), which are crucial to ensure a comprehensive approach to the well-being of employees.
How IgniteHR can assist:
In reflecting on recent legal cases, it becomes evident that clear policy communication, alignment with disciplinary procedures, and the consideration of mitigating factors play pivotal roles in dismissal decisions within workplaces. Achieving a delicate balance is necessary between fulfilling work health and safety obligations and adhering to anti-discrimination legislation, particularly when it comes to addressing concerns related to medicinal cannabis. As the landscape of employment practices evolves, staying informed about legal precedents is essential for fostering fair and just workplaces.
Contact IgniteHR; we have partnered with suppliers that can provide drug testing, enabling us to offer businesses the technical support they need. We are experts in integrating a policy framework, including working with industrial bodies and governance frameworks. If you would like support in formulating effective workplace drug and alcohol policies that integrate legal, medical, and ethical considerations, our policies can be adapted to the unique needs of your workplace, ensuring a safe and fair working environment.
Ignite HR & Employment Law is supporting businesses to understand their obligations, upgrade their current policies, undertake training and information sessions for businesses. If you find yourself in a situation where a staff member makes allegations in relation to any of these workplace behaviours you may need to do an investigation we can assist in addressing a sexual harassment or bullying complaint.
Talk to us to understand your obligations