Earlier this year, a Brisbane man whose job involved loading and unloading cargo from a ship was fired after testing positive for THC in a random workplace drug test.

Tetrahydrocannabinol (THC) is a cannabinoid commonly found in cannabis, and Michael Gauci had a prescription for medical marijuana.

So after losing his job, he filed a wrongful dismissal claim against his employer, the multinational logistics company DP World.

But things didn’t turn out the way he thought.

And as Belinda Winter, a workplace safety and relationship advocate, says ABC Radio National’s The Law Reportthe case demonstrates the gap between Australia’s occupational health and safety laws and the use of medicinal marijuana.

Increasing prescriptions

In 2016, medical marijuana was legalized for the first time in Australia. Since then, the number of patients using the drug to treat chronic cancer-related pain, anxiety and nausea has grown annually.

In 2019, around 18,000 Australians were prescribed medicinal cannabis products.

By January 2024, this number had increased to approx one million patients, conformable Australian Health Practitioner Regulation Agency (AHPRA).

And the number of doctors and nurses who can now prescribe medical marijuana has also skyrocketed.

In Mr. Gauci’s case, he was using medical marijuana, in the form of oil and vape, to treat a mental condition.

He worked as a steward at DP World for nearly two decades, and before the drug test had an unblemished record. However, his claim for unfair dismissal was rejected by the Fair Work Commission.

So why did this happen?

Mr Gauci was scheduled to work on February 5, 2024. He started work at 7am and picked up a box of containers before being told he had to take a random drug and alcohol test that day.

“On the relevant day his work involved operating heavy machinery in driving what was called a shuttle carrier. So it was quite an important role for safety, which is a very important feature of this particular case and other safety-critical cases,” explains Ms Winter. .

Two days later, lab tests confirmed that THC levels in his urine were 10 times higher than allowed under the company’s drug and alcohol policy.

“(Mr.) Gauci said that he was not affected at the time and that he was feeling well. He took the medication 24 hours before he started his shift but that didn’t stand up to cross-examination because he couldn’t confirm that particular amount he took,” Ms Winter says.

He was also concerned about disclosing the prescription to his employer and withheld this information because he was concerned he might be fired.

Ms. Winter says it should be noted that when her doctor prescribed that drug, she had to sign an acknowledgment that she was not required to operate machinery or heavy equipment.

So, Mr. Gauci faced two problems, Ms. Winter explains.

The first was that he was required under the drug and alcohol policy to inform his employer that he was taking prescription marijuana.

The second problem was that he was not allowed to work whenever he exceeded the limits prescribed in the drug and alcohol policy.

While a commissioner of the Fair Work Commission sympathized with Mr Gauci’s plight, the declared documents that they “were not satisfied that Mr Guaci’s personal circumstances outweighed his obligations to comply with the DP World (alcohol and drugs) policy”.

However, Ms. Winter says that testing for impairment when it comes to medical or recreational marijuana is unclear.

She says it depends on many different things, such as how often the drug is taken, what the dosage is and the patient’s physique.

“So my understanding is that it’s very difficult to test for deficiencies, and in the absence of testing for deficiencies, then we have to go back to what the Australian Standards say what levels should be in our system,” she says.

“Regulation must catch up”

There are many medications that could hinder performance at work. These fall under occupational health and safety bans and include certain pain relievers and sleeping pills.

“So it’s not just about medical marijuana, but I think there can be some misunderstandings about medical marijuana because it can’t just be for recreational use, it can also be prescribed.”

Ms Winter says there have been a number of cases similar to Mr Gauci’s in the mining sector. And when an employee operates heavy machinery at work, a wrongful dismissal case is unlikely to go in their favor.

However, for employees who are not involved in a safety-critical role, Ms Winter says they may have stronger grounds to challenge unfair dismissal.

“Sometimes employers take exception to the mere use of medical marijuana or the presence of THC, and that can give rise to a number of different claims — wrongful dismissal being one of them and discrimination,” she says.

“So if you have an office worker who works in a standard office and they might have THC in their system from using a week ago, but there’s absolutely no impairment and they’re not in a role critical to safety, it might be (legally) dangerous for an employer to simply terminate that person’s employment under those circumstances.”

Ms Winter says each case is unique, but she would like to see a better regime of testing for impairment in the workplace.

“Regulation needs to catch up and then employers need help with testing and help with understanding how they should be applied in any particular circumstance.”

This article contains general information only. You should consider obtaining independent professional advice in relation to your particular circumstances.