Although drug and alcohol testing is generally recognised as forming part of an employer’s strategies for managing its health and safety obligations, a recent FWC decision has provided a salutary reminder that employers who fail to follow best practice when conducting tests risk being on the wrong end of an unfair dismissal finding.
Drug and alcohol testing is becoming increasingly commonplace in Australian workplaces, with testing even being a mandatory statutory requirement in some industries such as mining and public transport. In recent times, the most contentious issue regarding drug and alcohol testing has related to the method of testing. For this reason, employers are recommended to have in place a drug and alcohol policy which deals with issues such as how tests will be validated, counselling and rehabilitation of employees, and makes clear when disciplinary action may be warranted.
However, as the recent case of Moore v Specialist Diagnostic Services Pty Ltd T/A Dorevitch Pathology (U2016/6425) illustrates, the first step is to have a drug and alcohol policy in place; the second step is to follow it!
In this case, in response to an anonymous tip off about drug use by some employees, Ms Moore was called to a meeting with her line manager and Dorevitch’s HR Officer at which she was directed to provide a urine sample (which would be collected by her line manager) to determine if she had illicit drugs in her system. Ms Moore became distressed in the meeting and declined to take the test. She left the workplace and, despite requests for her to return, did not do so and later submitted a medical certificate.
Dorevitch subsequently dismissed Ms Moore on the basis that she had failed to follow a management instruction. Ms Moore claimed that the dismissal was unfair.
While Dorevitch ultimately lost the case because it was unclear whether the applicant was dismissed due to her refusal to undertake the test or because of her failure to return to work when asked to do so, the FWC concluded that Ms Moore’s refusal to undertake the test had not been unreasonable. Although Dorevitch had a drug and alcohol policy in place, the test proposed by Ms Moore’s line manager and the HR Officer was in breach of the company’s policy and also the Australian and New Zealand Standard (AS/NZS 4308). Significantly, the Commissioner noted that:
- The process being proposed failed to comply with chain of custody requirements stipulated in the policy and ANZ Standards.
- Although the line manager had been a pathology collector 15 years ago, she had not undertaken drug screens in the last four years.
- Fundamentally, it would not be appropriate for a test to be conducted by someone the employee works with and particularly not by an employee’s line manager.