Over the past six months, the numbers of medicinal cannabis approvals and patients have skyrocketed. Unfortunately, that also means that the concerns raised about medicinal cannabis in the workplace and employee rights are increasing just as quickly. While it would be great to say that you have rights and there is nothing to worry about, we cannot. You do have rights, but what we’re seeing is that employers have not updated their policies with the times. As a result, you need to be very well informed and be prepared to work with and around your employer.
The good news is that one patient from QLD, Mitchell Rice, isn’t letting his employer’s actions knock him down. And, with the help of Chamberlains Law Firm, he’s taking Queensland Rail to Federal Court.
If won, this case will impact medicinal cannabis employee rights. It will likely also impact the cannabis and drug driving laws Australia wide.
Mitchell Rice is a medicinal cannabis patient who was employed by Queensland Rail (QR) as a rail worker. Mitch attempted to do the right thing by disclosing his medication to QR. Initially, QR stood him down with reduced pay. However, Mitch’s prescribing medical practitioner declared that Mitch’s capacity to work would not be affected if he took his medication eight hours before a shift. Despite this evidence, QR fired Mitch for using medicinal cannabis even with a prescription.
As a result, Mitch is taking on QR in an unlawful termination case, alleging discrimination as a medicinal cannabis patient. If Mitch wins, this could significantly impact employer responsibilities and testing regarding medicinal cannabis Australia wide.
Mitch had his first hearing on the 14th of December.
Background on Mitch’s medicinal cannabis consumption
In late 2020, Mitch was diagnosed with anxiety and insomnia due to extensive shift work for Queensland Rail and taking care of his terminally ill mother. Mitch was prescribed sleeping pills which resulted in adverse side effects. When looking for alternative options, he came across medicinal cannabis. Medicinal cannabis provided relief from his symptoms without the adverse side effects.
Mitch takes his medication before bedtime, at least eight hours prior to his next shift.
The QR drug testing process
The QR drug testing regime is similar to the current cannabis and driving rules. QR employees take a mouth swab test, and if they come back positive for presence, not impairment, they are deemed unfit to work. Mitch was open about his medicinal cannabis and provided evidence from his medical practitioner. However, when his mouth swab came back positive, he failed the test.
The legal question at hand
The case has commenced in the Federal Circuit and Family Court of Australia. The case is a general protections claim under the Fair Work Act. This is where an employer has mistreated an employee – in this case, on discriminatory grounds.
“So what we’ve said in the case is that Mitchell suffers from a medical condition and the medication prescribed for that condition is medicinal cannabis. And, as a result of his medication, his employer terminated him.”
While Mitch was fired for the mere presence of THC in his system, there was no evidence that Mitch was impaired. Mitch’s lawyer, Jeremy Kennedy, said, “The key legal question is whether or not Mitchell would be impaired from a work health and safety point of view. The employer needs to determine whether that impairment would put himself or others at risk in the workplace.
While QR is looking for the presence of what is typically an illicit drug, medicinal cannabis is not an illegal drug, and presence does not equate to impairment. Jeremy went on to say, “There are many other prescription medications that staff are required to declare. But the question then is whether they are impaired, not whether they have those drugs in their system.”
The fact that various potentially impairing prescription drugs are treated differently is inconsistent and discriminatory.
First appearance in court
The matter was put before the judge for the first time on Tuesday, the 14th of December 2021. The case was adjourned until the middle of next year. The court has ordered both parties to participate in alternative dispute resolution until then.
While QR and Mitch will work through this together in the interim, Mitch is still out of a job, and the odds are that the matter will end up back in court, where Mitch will need his current legal counsel, a barrister and expert witnesses.
The importance of supporting this case
While this case is specific to the use of medicinal cannabis in the workplace and discrimination, it could have significant knock-on effects regarding medicinal cannabis and driving if won.
Regarding the effects on employees and workplace rights, Kennedy said, “Rather than utilising testing for the presence of THC as an indicator, employers would have to think about a more objective assessment around impairment. But, of course, that will come down to the accepted medical evidence around how long a person may be impaired after using medicinal cannabis.”
In Mitch’s case, he was taking his medication up to 10 hours before starting his next shift and would not have been impaired.
Kennedy further stated, “There is a study by the Lambert Initiative of Cannabinoid Therapeutics where it’s been proven that inhaled cannabis impairment could last as short as two hours. And, the study I’ve read also indicates that THC levels are not an appropriate measure of impairment.”
If there is a positive outcome for Mitch, the implication for employees in Australia is that employees can feel safe about taking medicinal cannabis while not putting their employment at risk. The hope is that medicinal cannabis will be treated like any other prescription drug.
Medicinal cannabis and driving
The argument that organisations like Drive Change, which are fighting to change the discriminatory medicinal cannabis and drug driving laws, are making is similar. Most other prescription medications have a defence when a patient is driving and not impaired. The laws have not caught up with the times or the science.
If the court upholds that presence is not a good indicator of impairment, this could have further-reaching effects on our laws and constraints for medicinal cannabis patients more broadly.
How you can support the case
Mitch’s case has been taken on by the Chamberlains Law Firm team pro bono (free of charge). However, other aspects of this case will cost a large sum of money. When the case goes to court again, Mitch and his legal team will need a barrister and at least one expert witness, who will need to be paid.
While Mitch knows that the roughly 100k medicinal cannabis patients in Australia are behind him in heart and mind, his legal costs are estimated to be about $100,000. So to pay for his legal team, Mitch has set up a GoFundMe Page.
Any money up to the $100,000 will go toward his legal defence. Any excess money will go to the Cancer Foundation. Mitch chose the Cancer Council (Australia) to honour his mother, who recently passed away from cancer.
No matter how small, your support via a donation to Mitch’s legal campaign will go a long way. If you cannot donate, we would greatly appreciate a share of this article.