The Fair Work Commission recently considered an employee’s claim that their termination for failing to submit to a drug test was unfair.

The employee worked for a service provider company in the poultry industry. While a passenger in a work vehicle travelling from a poultry farm back to the company’s premises, the employee fell asleep. He remained deeply unconscious could not be woken for 45 minutes by co-workers. Attending paramedics found the employee to be rousable post verbal and physical stimulation. The employee admitted to the paramedics he had taken a drug, however refused to provide any details. The employee then refused further assistance, including offers to be driven home.

An Injury and Incident report was made the next day, noting what the employee had told the paramedics. Several days later the company’s HR manager contacted the employee to discuss the incident and direct him to submit to a drug test. The employee advised he had taken some prescription medication. The employee became evasive when asked to provide proof of the prescription and stated that it was a household members prescription and couldn’t provide evidence of the medication.

In response to the requirement to undertake a drug test, the employee then stated he had personal issues to deal with and was unable to comply. The HR Manager advised the employee that failure to comply with the direction could result in further disciplinary action, including the termination of his employment. Although the employee tacitly agreed to take the test, he did not in fact attend. When the employee was requested to attend a meeting to discuss his failure to attend for testing, the employee did not attend the meeting. His employment was then terminated

The Claim

As part of his application that the termination of his employment was unfair, the employee claimed:

• He had taken Phenergan due to an alleged headache and hay fever.

  
  

• The direction to submit to a drug test was unreasonable because too much time had passed since the incident.

  
  

• He did not comply with the direction to take the test due to personal circumstances at home.

The Response

The company held the view that:

• The employees termination was justified for failing to comply with what they held to be a fair, lawful and reasonable direction to undertake a drug test.

  
  

• The employees evasive responses and behaviour in light of the employees admission to ambulance officers of the use of an unnamed substance justified his termination under the company’s drug and alcohol policy and related procedures.

  
  

• The company’s drug and alcohol policy states that any use of illicit drugs or misuse of legal drugs rendered an employee unfit for work, and testing could be carried out if an employee was reasonably suspected of being drug affected.

  
  

• The employee had been given proper opportunities to respond to allegations, and that the overall reason for termination was valid and the process fair.

Additionally, under an order for production of evidence, the Commission was provided with NSW Ambulance report that corroborated the employees admission to paramedics of having taken an unnamed substance.

The Decision

In dismissing the application, the Deputy President held that:

• The employees evidence about the drug he took was not satisfactory and was evasive.

  
  

• Although the employee claimed to have taken a prescription medication, it was clearly evident that Phenergan was not a prescription medication.

  
  

• There was no logical or credible reason for the employee not to have told the company what prescription medication he had taken. Further it was held that the employee was overly ‘careful’ while giving evidence at the hearing.

  
  

• The direction to submit to a drug test was lawful and reasonable, despite the time elapsed, given the "significant" incident and the unsatisfactory information provided by the employee.

  
  

• The employees failure to submit to a drug test contravened company policy. The company was entitled to treat the failure to take the test in the same way as have failed the test.

  
  

• While it was agreed that the employees ‘personal circumstances’ were difficult, they were not so difficult that he could not submit to a drug test.

  
  

• His termination was not harsh or disproportionate to his failure to submit to a drug test and his related conduct.

Thought list and takeaways

Based on the decision, there are several key takeaways for employers to consider:

Prompt and Thorough Incident Responses - especially regarding safety and potential impairment. Employers should promptly address and investigate serious workplace incidents that raise concerns about employee safety or potential drug impairment.

Establish and Clearly Communicate a Robust Drug and Alcohol Policy. Have a clear and comprehensive Drug and Alcohol Policy in place that outlines expectations regarding drug use (both illicit and misuse of legal drugs) and the consequences of non-compliance. The policy should also clearly state the employer's right to conduct drug screenings or tests when there is reasonable suspicion of impairment.

Failure to Comply with a Lawful and Reasonable Direction can Constitute a Valid Reason for Dismissal. An employee's failure to comply with a lawful and reasonable direction from the employer, such as a direction to undergo a drug test, can potentially constitute a valid reason for dismissal related to their conduct.

Treat Refusal to Test Seriously. The decision highlights that an employer may be "entitled to treat the failure to take the test in the same way as a failing of a drug test". This reinforces the importance of clear policy and communication regarding the consequences of non-compliance with drug testing directions.

Employee Evasiveness and Lack of Transparency Can Strengthen an Employer's Position. When an employee is evasive, provides unsatisfactory information, or changes their story regarding a serious incident, it can increase the employer's concerns and strengthen the grounds for action.

Always Afford Procedural Fairness. Regardless of the circumstances, employers must ensure procedural fairness when considering dismissal.