Can a Worker be Sacked for Using Legal Non-prescription Drugs?

The short answer is, yes.

But if and only if your company has a clearly worded, legally binding and properly communicated drug and alcohol policy.

This legality of this has recently been put to the test.

A case was filed at the Fair Work Commission by an employee of Transdev Queensland. The former employee claims that the company’s dismissal was unfair. 

Transdev Vs. Guorgi Case

The Fair Work Commission has ruled that Mr. Guorgi, the former employee of Transdev Queensland should not return to his job, citing his non-prescription drug use. Mr. Guorgi was taking Nurofen Plus to manage his pain.

According to Mr. Guorgi, he was in no way impaired by taking a legal non-prescription drug. He claims that he could carry out his responsibilities on the job. Most especially since his was an office job with deskbound duties. 

This Transdev Vs. Guorgi case highlights the responsibility of businesses to establish a comprehensive drug and alcohol policy. And the policy should be legally binding, concise, and well understood by employees. And that ultimately, the Fair Work Commission will rule according to what’s stated in your company’s drug and alcohol policy. 

Transdev Queensland Drug and Alcohol Policy

As per Transdev Queensland’s drug and alcohol policy, Mr. Guorgi was terminated on the grounds of his failure to notify the company that he was taking Nurofen Plus.

The company policy states that an employee should fill out a form advising the HR manager of prescription and non-prescription drug use. Transdev Queensland requires employees toprovide a medication declaration form to the HR manager.

However, Mr. Guorgi failed to report the drug use. Not only that, but he also failed to comply with the Drug and Alcohol Testing Procedure of a saliva test. 

What the Fair Work Commission’s Ruling Highlights

In Mr. Guorgi’s unfair dismissal case, he states he was no more of a risk now than he was back in 2014 when he had clearance for employment even while taking Nurofen Plus.

However, what the ruling of the Fair Work Commission makes clear is that there doesn’t need to be a link between drug use and endangering people. 

And despite Mr. Guorgi’s allegations of significant procedural deficiencies in his termination and the company’s bullying of him throughout the process, the Fair Work Commissioner found him guilty of the breach in company policy.

The final decision makes clear that a dismissal on the grounds of failure to report non-prescription drug use under the company’s drug and alcohol policy is legal. 

While the Fair Work Commissioner awarded Mr. Guorgi $17,795 as compensation on the grounds that there was apparent negligence on the part of Transdev Queensland, his allegations were not enough to reinstate him. 

If anything, the Transdev vs. Guorgi case showcases the strength of a lawful company drug and alcohol policy. It is clear that regardless of circumstances, non-compliance can result in a dismissal. 

Drug-Safe Australia Will Help You Develop a Legally Binding Company Drug and Alcohol Policy

We can all agree that there are many risks in hiring and keeping an employee that uses non-prescription drugs. Should Transdev Queensland have had no clear cut company drug and alcohol policy, the Fair Work Commission could have ruled in favor of Mr. Guorgi. If not, the compensation would have been much higher. 

However, it’s also clear that having an ambiguous company policy on drug and alcohol use, one that is not clear and concise may work against you. For this reason, it is important to establish a clear, concise, and comprehensive drug and alcohol policy. 

Contact us if you have any questions about developing a company drug and alcohol policy, Drug-Safe Australia will guide you through the process. If you are unsure, we will help you determine the consequences of a policy breach depending on your type of business and the work environment you want to foster. 

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