There continues to be controversy over whether urine or saliva testing is the most appropriate method for drug testing in Australian workplaces. Recently, the Full Bench of the FWC upheld the dismissal of a store officer because of the employee’s repeated failure to provide a urine sample for drug and alcohol testing. The employee claimed that a saliva test was more appropriate for testing impairment given the employer’s policy on alcohol and drugs misuse provided for the testing of employees for impairment only whilst at work.

The Full Bench found that in this case, the employer’s policy “did not confine itself to testing for impairment” and upheld the employer’s direction to be “both lawful and reasonable”.

Accordingly, the Full Bench held that the employee was “contractually bound to comply” with the employer’s “lawful and reasonable request” to provide urine sample, taking into account the common practices that existed in the industry and the reasonableness of the direction from the employer. By refusing to do so, the employee had engaged in conduct that was “repudiatory of his employment contract” according to the Full Bench.

Interestingly, the Full Bench pointed out that the employee could have used the dispute resolution mechanism available under the applicable Enterprise Agreement to agitate his concerns about the method of testing rather than simply defying the employer’s direction, thereby causing the termination of his employment which led to the unfair dismissal.

Mr Raymond Briggs v AWH Pty Ltd [2013] FWCFB 3316