Drugs and discrimination

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Drugs and discrimination

A current issue has arisen as to whether employees who are drug users are able to claim that their drug usage is a disability under the Anti-Discrimination Act 1977 (NSW) or the Disability Discrimination Act 1992 (Cth).

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A current issue has arisen as to whether employees who are drug users are able to claim that their drug usage is a disability under the Anti-Discrimination Act 1977(NSW) or the Disability Discrimination Act 1992(Cth). NSW and Victorian anti discrimination bodies have accepted complaints by drug users under the ground of disability. These cases have been resolved through conciliation and none has been referred to the courts.

To date the Chamber is not aware of any court case or parliamentary commentary linking drug use with discrimination but there are cases linking drug use with termination of employment in the Industrial Courts.

In the recent case of Hammond v Pacific Power (Electricity Commission of NSW and Hammond, S J [1995] NSWIRComm 185(20 September 1995)), Hammond was dependent on marijuana. He was found smoking marijuana in a cable shed during working hours and was subsequently dismissed. Hammond had participated in counselling and rehabilitation prior to his termination and admitted he smoked on that occasion to alleviate family stress. He claimed unlawful termination

The Commission noted that:

"It is a matter of the employers discretion to demand a drug free environment" and "There can be no doubt that the EC (Electricity Commission) is entitled to have their employees attend for work fit for duty and carry out those duties without the influence of substances such as marijuana."

Nevertheless, the termination of Hammond without giving him the opportunity to participate in the "Employee Assistance Program" and the "Attendance at Work programme" was found to be "harsh, unreasonable and unjust." Reinstatement and lost wages were ordered. The Commission made it clear that this decision was based on the particular circumstances of the job.

This decision contrasts with Sheil vs NSW Fire Brigade in which the Commission refused to reinstate an employee found to have been under the influence of marijuana during work hours. The Commission found the employee was unfit for duty through drugs.

Legislation

The definition of disability in the Anti-Discrimination Act 1977(NSW) and the Disability Discrimination Act 1992(Cth) includes:

  • total or partial loss of a persons bodily or mental functions..,
  • a disorder, illness or disease that effects a person’s thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour.

The medical profession has not yet defined drug addiction as a disorder, illness or disease. The Disability Anti Discrimination Committee excluded the word ‘condition’ from the definition of disability because it was felt this may include people who were temporarily affected by alcohol or drugs. This may mean that people permanently affected by alcohol or drugs are covered by the legislation.

Illegal Drug Use

The use of some drugs is illegal. The fact of the use of illegal drugs does not necessarily mean that illegal drug users cannot be protected by anti discrimination laws. For example homosexual discrimination was made unlawful in NSW in 1982, two years before male homosexuality was decriminalised.

In the USA this issue is resolved under the Americans with Disability Act 1990 so that only those who have taken drugs in the past and who have undergone or are undergoing rehabilitation are included in anti-discrimination law.

 

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