It is widely accepted that employers can require their employees to undertake drug testing in accordance with an appropriate company policy. Importantly, the policy must stipulate testing protocols, procedures and agreement on testing methods. In a recent case before the FWC[1], an Elevated Work Platform Operator made an unfair dismissal application after his employment was terminated for failing to attend a drug test, which required him to produce a blood sample. A central question for the FWC was whether the employer’s direction to undertake a blood test was reasonable in the circumstances.

When Lincon Hire & Sales received information from an anonymous source alleging that three employees were using drugs, it decided that these employees would undergo a random drug test in accordance with the Drug and Alcohol Policy. The policy did not specify what method of drug and alcohol testing could be used.

The employees undertook the drug test by way of a urine sample and each employee produced a negative result. However, the company received information that the samples had been ‘faked’, or perhaps tampered with. The company believed the drug tests performed were not reliable and an additional test was organised for the three employees in the form of a blood test.

The employees disputed the request for a second drug test and claimed that the collection of blood was an “invasion of their privacy”. Further, the policy contained no express reference concerning the provision of a blood sample. None of the employees showed up for their appointments and as a result their employment was terminated. The employees claimed they were not advised that a failure to attend the appointment would result in their dismissal.

The FWC agreed that the workplace environment was high risk and safety concerns were paramount. It also agreed that it was appropriate for the company to require employees to attend a drug test. That being said, the FWC questioned the lack of appropriate explanation indicating why a blood test was required, given there were less intrusive collection means. As the policy contained no express provision allowing for blood testing, the FWC concluded that the request to provide a blood sample for drug testing was not reasonable. Therefore, the company held no valid reason to dismiss the employee who was awarded $8,150.21 in compensation.

Lessons for employers

• Employers are obliged to protect the health, safety and wellbeing of all employees. This requires ongoing monitoring and vigilance on the use of drugs and alcohol in the workplace.
• Managers, supervisors and employees must be suitably trained and educated in this area.
• Ensure a robust drug and alcohol testing policy and procedure is in place. The policy must be regularly reviewed, updated and communicated to employees.
• Employees should be provided with a copy of the drug and alcohol policy and regularly reminded on the duty of care they owe to others, themselves and the business.
• Remember that the direction for drug testing must be reasonable and in accordance with what is stipulated under the policy.