Although drug and alcohol testing is generally recognised in Australia as forming part of an employer’s armoury for managing its health and safety obligations, a recent Fair Work Commission decision has provided a salutary reminder that employers in Australia which fail to follow best practice when conducting such 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 that testing. It is generally accepted that an employer can require employees to undertake such tests. However certain safeguards should be implemented to protect those employees. 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 which makes clear in advance when disciplinary action based on the results may be warranted.
However, simply having a policy in place isn’t by itself sufficient, as highlighted in the case of Moore v Specialist Diagnostic Services Pty Ltd t/A Dorevitch Pathology.
In response to an anonymous tip-off of drug use, Ms Moore was called to a meeting with her line manager and Dorevitch’s HR Officer at which she was directed to undertake a urine test to determine if she had illicit drugs in her system. Ms Moore became distressed in the meeting (which she attributed to personal issues she had been experiencing that day) and declined to take the test. She left the workplace and, despite requests for her to return, did not do so. She later submitted a medical certificate.
Dorevitch subsequently dismissed Ms Moore on the basis that she had failed to follow a reasonable management instruction. Ms Moore claimed that the dismissal was unfair.
Whilst Dorevitch ultimately lost the case because it was unclear whether the employee was dismissed due to her refusal to undertake the test or her failure to return to work when asked to do so, the FWC also 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 Fair Work Commissioner noted that:
- the process proposed failed to comply with chain of custody requirements stipulated in both the ANZ Standards and Dorevitch’s own policy;
- although the manager had been a pathology collector 15 years ago, she had not undertaken drug screens in the last 4 years; and
- 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 manager.