The recent dismissal of an employee who failed to provide a urine sample for a drug test at work was upheld by the FWC.
In February this year, an employee refused to provide a urine sample for an alcohol and drug test at work. Her denial was due to “personal medical reasons” – a urinary tract infection – and she instead offered to undergo a saliva test, which was one of the methods listed in the employer’s drug and alcohol policy.
The company’s testing provider informed her that this option wouldn’t be possible, and that her suggestion to opt for a saliva swab, instead of the requested urine sample, would be deemed as the equivalent of a positive result.
Still, the employee maintained her objection.
Taking into account the time it may take for a urinary tract infection to resolve itself, the employer, a hardware supplier, stood down the employee, with pay, for seven days. She was granted the opportunity to provide a urine sample again later that month, but she refused to do so, even though the employee no longer had a medical condition by that point.
The company, a hardware supplier, then dismissed the employee for going against company policy. The employee claims her employer did not consider her reasons, which are detailed below, or discuss the matter before settling on termination. She then filed an unfair dismissal claim.
Finding in favour of the employer, Deputy President Asbury of the Fair Work Commission said the employee was not entitled “to insist upon her preferred method of testing in circumstances where she was lawfully required to undertake a test using a testing method chosen by [her employer] pursuant to its right to do so and that requirement was reasonable”.
HRM unpacks the case with Melanie Thorley, Principal Solicitor of MJT Law, and discusses some key lessons for HR practitioners.
Employer in the right
From the outset, the employer placed itself in a strong position by clearly articulating its drug and alcohol policy, says Thorley.
Under the terms of the company’s zero tolerance drug and alcohol policy, employees could be asked to undergo a drug and alcohol “screen” that might involve a “breath test, urine sample, oral swab and blood test”. The policy also covers “new technology” not currently listed in the policy, but which could be used for testing in future.
Although the employee said her contract of employment did not specify that she would be required to undergo a drug test at work, the contract mentioned she would be obligated to adhere to all company policies and procedures.
“The company then went further and said in the employment contract that not complying with a policy and procedure might amount to serious misconduct, which could end up in dismissal,” says Thorley.
“They had a policy and contract that were both clearly drafted. They then went one step further by covering this in the company orientation.”
In March 2019, the company ran training for new and existing employees on its drug and alcohol testing regime. After this session, the employee raised concerns about the company’s testing regime, she told the FWC.
She queried its “invasive method of testing when swab testing was used by the police, mining companies and the majority of the building and construction industries”.
But Thorley said the training the employee underwent meant she “understood that there could be a urine test”.
Thorley also noted that the company rightly gave the employee a second chance by allowing her to provide a urine sample at a later date, once her urinary tract infection had resolved.
“When we’re looking at the criteria for considering whether a dismissal is harsh, unfair or unjust, you need to give the employee a chance to get it right. And I think the company very clearly gave the employee that chance.”
“I think they did a brilliant job of setting themselves up for success,” says Thorley.
“They accepted the fact that she had a urinary tract infection, although there was never any proof of that. And once the infection was resolved, they gave her another chance to do a urine sample.”
Thorley believes they could have issued a termination on the basis of the employee’s initial refusal to undergo a urine test on 1 February.
“I think the decision would have been the same, but it would have been a harder win.”
Undertaking a drug test at work
The matter in question is not about the employee objecting to the company’s request that she undergo a drug test at work, but whether she could reasonably opt for her preferred testing method.
“This is about whether it’s okay, if an employee fails to comply with a policy considered to be a lawful and reasonable direction, for an employer to dismiss them.”
The owner of the drug testing company explained to the company’s chief executive that many people opt for a saliva swab because of its “shorter detection window compared to urine”, while ensuring to note this statement was made as a general comment rather than as a specific remark about this particular employee’s preference for a saliva swab.
Thorley says the type of testing employees are required to undertake is up to an employer to decide.
In addition, the FWC made the point that employees who are confined to the office can still be subjected to the same drug and alcohol testing as those working on construction sites.
“Even if you work in an office, you can still have a zero tolerance… even if you never leave your desk,” says Thorley.“If you’ve got a company that has a particular type of policy, it’s a matter of the employee to come on and understand what those values are of the company and align themselves with that, or choose not to work there.”
Of course, this isn’t a blanket rule, and there are some instances when a policy itself could be problematic, such as if it constitutes discrimination.
In MJT Law’s recent podcast, Unfair Dismissal Case: Urine Test for Drugs & Alcohol/Aussie Work Culture, Thorley refers to the precedent of ‘one and all’ to illustrate why the argument put forward by the employee in this case was not upheld by the FWC.
“The offices for energy resources companies still have the same mandatory tests and everything and they are not even touching a screwdriver. And that is perfectly legitimate to do. That’s why I mention this ‘one and all’ concept,” she says. “You might not be out there talking to [people on the ground], but the company is making a company-wide policy that applies to all people, and there’s a precedent that allows for that.”
Drafting a robust drug and alcohol policy
Since the company’s drug and alcohol policy was well-defined and covered all bases, the employer set themselves up well… Its policy provides a useful roadmap for other HR practitioners, says Thorley.
“When you draft your policy, it needs to be clear and written with enough scope so that you get what you want, but you also have some wiggle room.
“You don’t need to have a perfect policy… that is 40 pages long with all the different ways you can test. You just need one that fits the purpose you’re trying to achieve.
“If you want to limit drugs and alcohol in any way you want, write that in. If you want to say that you have a zero tolerance [and will] fire anybody who has a positive result, then write that into the policy. And remind people when you are heading out to a work event, that you have zero tolerance.”
Thorough documentation also set the company up for success, adds Thorley.
“If you want to show how to get it right, this is a really good case… We also know it’s very clear in the way the decision was drafted, and they went through all the different steps that they considered.
“This can help companies make sure they get it right more often.”
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