Clearly an employee who is intoxicated at work will suffer from impaired judgement and may seriously jeopardise their own and other employees’ safety. A common question we are asked is: When can I test employees for drug and alcohol use?

This area is a tricky one for employers as there are competing interests to consider: the employer’s obligation to provide a safe workplace, versus an employee’s right to privacy.

Procedural Fairness v Safe workplace

A recent FWC decision[1] highlights the complexity of this issue. An Ensign employee was summarily dismissed after failing a random drug test, testing positive for methamphetamine, THC and amphetamine. He claims he was wrongly terminated as he did not use drugs, the testing was unreliable and he was denied procedural fairness in the testing and disciplinary procedure.

The FWC agreed that the dismissal lacked procedural fairness; however this was mitigated and overridden by the employer’s obligation to ensure a fair workplace. Although the employee was not successful in this case, the nature of the workplace was critical to the decision (the employee was working in a gas field) and the result may have been different had the employer not followed procedure in a less dangerous working environment.

The case confirms that, while privacy considerations and fair testing procedures are important, an employer’s primary obligation is to provide a safe working environment for its employees.

Importance of a Policy

Even so, the Commissioner commented that"The zero tolerance drug and alcohol policy and the likely consequences of a breach was well known to (the employee)”.

As testing of employees for the presence of drugs and alcohol can be a contentious area, it is important that employers ensure they have a robust drug and alcohol policy that specifies testing protocols, procedures and agreement on testing methods. Further, employers should ensure that employees are well informed about the policy and testing procedures.

It is also important to ensure that employees are treated equally with regards to who is tested and why, whether that be for random testing or for testing as a result of a reasonable suspicion of drug or alcohol use. This should all be spelled out in the company policy.

Lessons for Employers

·         Having a drug and alcohol policy with clear testing procedures is essential. Do you know how you are going to test? What you are           testing for? Is your policy up to date?

·         Testing programs should be justifiable: Do you have a reasonable suspicion of drug use? Is there a substantial safety risk?

·         Ensure employees provided with a copy of the drug and alcohol policy and are properly trained in the contents of the policy.

·         Ensure there is a process in place for dealing with a test result that is positive. Quickly acting to dismiss is not always the best                 answer, and other options such as offering sick leave, counselling or rehabilitation services may be appropriate.

[1] : Nicholas Hafer v Ensign Australia Pty Ltd T/A Ensign International Energy Services [2016] FWC 990 (22 February 2016)

 

Christine Broad

Solicitor

BlandsLaw