In the recent case of Moore v Specialist Diagnostic Services Pty Ltd t/a Dorevitch Pathology [2016] FWC 5910, the Fair Work Commission held that an employee was unfairly dismissed in circumstances where she refused to take a urine test because it was not in accordance with the employer's policies or Australian and New Zealand standards.
The Case
The employer received an allegation that Ms Moore, a Collections Coordinator, was abusing illicit drugs. The HR Department and Ms Moore's supervisor asked her to attend a meeting during which they requested her to provide a urine sample.
Ms Moore agreed to provide the sample, however she objected to her supervisor collecting the sample. She became agitated and subsequently left the meeting, did not return to work despite requests and provided a medical certificate stating she would not be returning to work.
Upon her return to work, in a second meeting with her supervisor and the HR officer, Ms Moore apologised for her behaviour and again indicated she was willing to provide a urine sample. She was terminated that day for serious misconduct for failing to follow management's reasonable directions.
Ms Moore alleged that she had been unfairly dismissed on the basis there was no valid reason for her dismissal and she was not awarded procedural fairness. She further claimed that the collections procedure proposed by her supervisor and the HR officer was not in accordance with Dorevitch's policy or Australian and New Zealand standards.
Commissioner Bissett upheld Ms Moore's claim and found that her behaviour at the first meeting did not warrant serious misconduct justifying dismissal. The Commissioner also held that allowing a direct supervisor to collect the urine sample was in breach of Dorevitch's policy or Australian New Zealand standards and therefore Ms Moore was entitled to request that proper procedure be followed. It was also noted that whilst Dorevitch's policy allowed it discretion as to when a sample could be collected and screening methods, the collection process proposed by Dorevitch in relation to Ms Moore would have also resulted in a breach of the chain of custody procedure.
Commissioner Bissett also emphasised the need for employers to adhere to their own workplace policies and best practice, when it comes to drug and alcohol testing in the workplace.
The employee was awarded $27,900 in compensation plus superannuation.
Drug and Alcohol Testing
It is important that workplace policies which cover drug and alcohol testing are carefully implemented, communicated and managed in the workplace.
Employers must also bear in mind that drug and alcohol testing should be properly incorporated into workplace policies and procedures as drug and alcohol issues may also impact on the employer's work health and safety obligations to workers.
As this decision shows, failure to properly manage drug and alcohol testing may pose risks for employers, such as discrimination, bullying and unfair dismissal.
Workplace Policies and Procedures
In general, when it comes to workplace policies and procedures, employers should ensure that:
- they are regularly reviewed and updated;
- they are applied as a matter of best practice;
- they allow for a certain degree of discretion;
- that staff receive training on the organisation's policies and procedures, particularly those staff who are responsible for implementing and managing those policies and procedures.
Employers should also be mindful as to whether workplace policies and procedures are contractually binding, as a breach of a policy or procedure may then potentially lead to a breach of contract claim.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
