An employee who turns up to work under the influence of drugs or alcohol creates a risk to themselves and to others that can range from minor to life-threatening.  Not only do they put themselves and their co-workers in danger, but the business itself can suffer damage to its reputation.

Employers have an obligation to maintain the health, safety and welfare of all employees. They also want to ensure their employees uphold the integrity expected of them. Implementing a drug and alcohol policy can go a long way to eliminating the hazards that drug and alcohol use have on the workplace, and best practice is that these policies should also include guidelines as to how and when drug and alcohol testing will be conducted.

In a recent case heard by the FWC[1], a Dorevitch Pathology employee was asked to undergo a drug test during a meeting, after she was accused of using heroin by an ‘anonymous source’ (later identified as her disgruntled neighbour). The employee questioned the request, saying she did not believe it was best practice for the sample to be collected by her supervising manager. The employee left the meeting in distress and decided to take some time to cool off away from the premises, but failed to let her manager know when she would return to work. Following a few unanswered phone calls, she eventually told her manager that she had a doctor’s certificate and would not be returning to work that day. A week later, the employee was asked to attend another meeting where she was dismissed for “failing to comply with a lawful and reasonable direction”.

The FWC found the dismissal to be ‘unfair’ because the Company was not clear on what the exact reason for the dismissal was. The Commission considered two options: the refusal to return to the meeting or the refusal to take a urine drug test by her manager. Both possibilities were rejected as it was acknowledged that the medical certificate entitled her to take the rest of the afternoon off. Furthermore, it was accepted that the employee did not necessarily refuse to undertake the drug test; rather she was hesitant about its manner of collection. The FWC criticised Dorevitch’s HR manager in the way she handled the situation and agreed that it is not best practice to take a urine drug sample from a person you work with, let alone someone you directly supervise.

The case is a reminder for employers to ensure that drug and alcohol policies are up to date and well drafted, especially in relation to drug testing procedure. Policies must specify the reasons for the test, the method of testing, when and where testing will occur and the consequences of a positive result.

Provided that there is a clear policy and reasonable testing methods are implemented, an employer may be justified in dismissing an employee on the basis that the drug and alcohol policy was breached. Nonetheless, employers are advised to consider all factors before quickly deciding to terminate.

Lessons for employers

• Ensure your employees are fully informed of the company drug and alcohol policies, including the testing procedures that may be conducted.
• Consider what the consequences will be if an employee tests positive. A positive result doesn’t necessarily indicate present physical impairment.
• Ensure the drug and alcohol policy is applied fairly and consistently to all employees.
• Where an employee tests positive, ensure they are given the opportunity to explain themselves. Understanding the bigger picture might indicate an underlying substance abuse problem. In these cases, counselling, treatment, and rehabilitation services may be necessary.
• If deciding to terminate, ensure the process is handled with procedural fairness. In unfair dismissal cases, the FWC will consider whether the dismissal was harsh, unjust or unreasonable.

Summary

In the interest of maintaining health and safety, employers are permitted to conduct drug testing at work. However, employees also have the right to privacy. In order to strike a balance between these competing interests, effective drug and alcohol policies must include information on drug testing best practice.