workplace law

Pendlebury Workplace Law is a specialist workplace relations and employment law legal practice based in Sydney.

The Fair Work Commission Upholds the Dismissal of an Employee who refused to Provide a Urine Sample for a Drug Test

A Fair Work Commission (“FWC”) full bench, in Raymond Briggs –v- AWH Pty Ltd [2013] FWCFB 3316 (5 June 2013), has upheld the dismissal of an employee who refused to provide a urine sample for a random drug and alcohol test because he argued that a saliva sample, for which he was willing to provide, was more appropriate to assess impairment. 

The employee was a Stores’ Officer with AWH Pty Limited.

Vice President Adam Hatcher, Senior Deputy President Jonathan Hamberger and Commissioner Michelle Bissett, rejected the employee’s argument that Commissioner Williams was “wrong” in finding that his dismissal was valid because he refused to abide by a “lawful and reasonable request.”

The FWC bench ruled that the Company’s direction that all employees take part in the blanket testing was authorised by the Company’s Alcohol and Drug Misuse Policy, to which the Stores’ Officer was “contractually bound to comply“. 

The direction from the Company was also “consistent with common practice in the employer’s own enterprise as well as the industry in which it operated“. 

The FWC bench found that the Stores’ Officer had refused to comply with the direction despite the Company giving him several opportunities over a week period, and further, warning the employee that he would be dismissed if he refused to change his position. 

The FWC bench said, “Simply put, he [the Stores’ Officer] was engaged in conduct that was repudiatory of his employment contract“. 

The FWC bench acknowledged that the Stores’ Officer had a right to seek to change the Company’s use of urine testing, “but there was a proper way to agitate his issue in the workplace which did not require him to defy his employer’s direction“. 

The bench said it was regrettable that the employee had “put himself in a position where his continuing employment stood or fell on the narrow question of whether his employer’s direction for him to undergo a urine test was lawful and reasonable,” most particularly, given that the employee had no concerns about passing either a urine test or a saliva test. 

The bench advised that the Stores’ Officer would have been best placed to utilise the dispute resolution mechanism available in the Company’s Enterprise Agreement instead. 

Drug Testing Methods Controversial

The FWC bench said that the issue of whether a urine or saliva sample is the most appropriate workplace drug testing method, “has proved to be controversial“, with industrial tribunals failing to reach consensus on the matter. 

It also noted the controversy over which of “two competing workplace interests” should be given priority, saying the interests, “might alternatively be characterised as workplace ‘rights’ in the social and ethical, if not the legal sense“. 

However, the bench also noted, “there is the interest of employees in not having their private behaviour subject to scrutiny by their employers” and, “there is the interest that employers and employees have in ensuring a safe working environment by the taking of all practicably available measures to detect and eliminate or manage risks to safety“. 

The bench failed to resolve the controversy over the testing methods. 

Brooke Pendlebury
Friday, October 25, 2013