The Fair Work Commission recently upheld a dismissal of an employee for refusing to provide a urine sample for a random drug and alcohol test. Since the Full Bench decision in Endeavour Energy v CEPU, ASU, APESMA [2012] FWAFB 4998 (Endeavour Energy) in March 2012 (see here), it has generally been accepted that oral testing is the more reliable method of testing for drug-related impairment.

Implications for employers

This decision leaves the window open for employers to argue that a policy of random urine testing is reasonable where it can be justified on safety grounds. However, given the inconsistencies with the Endeavour Energy decision and strong opposition from most unions to urine testing, it may still be preferable to use oral testing.

Either way, employers should remember that drug and alcohol testing should only be done in accordance with a comprehensive policy established in consultation with workers and their representatives. The policy must also be clearly explained to employees.

Background

AWH Pty Ltd (AWH), a logistics and storage company, dismissed an employee, Mr Briggs, for refusing to provide a urine sample for a random drug and alcohol test in accordance with its drug and alcohol policy.

The relevant policy stated that refusing to undertake a urine drug test would result in disciplinary action or termination of employment. The policy was explained to Mr Briggs during his induction.

Mr Briggs’ employment contract also expressly required him to be free from the effects of any drug while carrying out his duties and to comply with any direction to undergo a drug test to determine his fitness to work.

In September 2012, all employees were directed to undergo a random drug test. Mr Briggs refused to provide a urine sample, but instead offered to provide a saliva sample. Following several meetings with management about the method of testing, Mr Briggs received a final warning. Mr Briggs’ employment was terminated when he continued to refuse to take a urine test.

Mr Briggs argued that his dismissal was unfair because he was entitled to refuse to comply with a policy that did not follow best practice.

AHW argued that it had a valid reason to dismiss Mr Briggs on the basis that he failed to obey a lawful and reasonable management direction on two occasions, in breach of its policy.

Decision

The FWC found that AWH had a valid reason for dismissing Mr Briggs for his repeated refusal to comply with the policy.

Commissioner Williams rejected Mr Briggs’ argument that urine testing was unreasonable, holding that:

  • a testing policy is not unreasonable simply because an employer could have adopted an alternative approach to testing which an employee would have preferred, and which in some circumstances, may have had different consequences or outcomes for tested employees; and
  • the testing method was reasonable and was a matter for the company to decide on.