Discrimination, adverse action and where protection actually runs out

Last verified: 2026-07-29

The law does protect prescribed workers — but the protection is narrower than most people hope, and it bends around genuine safety requirements.

Where protection is real

• Disability discrimination. If you take medicinal cannabis for an underlying condition, that condition may be a disability under discrimination law. Dismissing or disadvantaging you because of the condition — rather than a genuine safety issue — can be unlawful, and an outright blanket ban on lawfully prescribed medication can expose an employer to discrimination claims.
• Reasonable adjustments. Employers may need to consider adjustments — modified duties, rosters, or tasks — before dismissal, where reasonably practicable.
• Adverse action. Punishing you for exercising a workplace right — like making a complaint about a flawed testing process — raises separate protections beyond unfair dismissal.
• Procedural fairness. Whatever the reason, a dismissal delivered without a fair process can be unfair even when a valid reason existed.

Where it runs out

• Inherent requirements. If you cannot safely perform the essential requirements of the role even with adjustments — a truck driver who cannot lawfully drive, a machine operator whose medication carries an impairment risk the employer cannot manage — discrimination protections generally give way. That reasoning ran through Mills, where an unblemished record and an offer to stop the THC product did not save the job.
• WHS duties. Employers are legally required to manage impairment risks. A policy that is lawful and reasonable, applied consistently, is very hard to beat — the fight is usually about whether yours was.
• Policy breaches. No discrimination argument rescues a clear, knowing breach of a reasonable disclosure or testing rule. The protection is for the condition and the lawful treatment — not for how the rules were handled.

The strategic takeaway

Workers win these disputes at the beginning, not the end: proper disclosure, prescriber involvement, cooperative fitness-for-work assessment, and a paper trail. If it has already gone wrong, the questions become whether the policy was reasonable, whether the process was fair, and whether safety was the real reason — questions for a lawyer with your documents in front of them, inside the 21-day window.