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Failing to disclose use of medicinal marijuana clearly breached an employer's policy, but the employee didn't act with "malevolence", the Fair Work Commission has ruled in ordering his reinstatement.

Deputy President William Clancy found that while there was a valid reason for the dismissal, it was ultimately unfair, given the employer had failed to consider other disciplinary options under its Alcohol and Other Drugs Policy.

The Commission heard that in August 2020, the Glamorgan Spring Bay Council works officer sustained a work-related foot injury that left him with chronic pain. In June 2023, following other failed treatment options, he was prescribed medical cannabis (CBD) by his treating doctor.

He informed his employer, and following medical confirmation that the prescription would not interfere with the safe performance of his duties, the employee returned to his role.

In February 2024, however, the employee underwent a random drug and alcohol test, returning a positive result for Delta-9-tetrahydrocannabinol (THC). He subsequently informed his employer that his doctor had been prescribing him THC (medical marijuana) as well as CBD, as the latter alone wasn't working...