Rebekah Fryer - Associate.

In the case of Kidd v Linfox Australia Pty Ltd, the Australian Industrial Relations Commission (AIRC) ordered that an employee, who was terminated for refusing to submit to a drug and alcohol test, be reinstated because he had not been properly trained in, or informed about, his employer's drug and alcohol testing policy. Further, the employer had not complied with its own policy, which only authorised 1 test a year for each employee.

Linfox had a "Vision Zero" drug and alcohol policy, which had been successful in reducing accident rates, lost time injuries and other safety issues. The policy provided for random testing of workers in safety sensitive positions, such as heavy vehicle drivers and included sanctions for failing a test or refusing to submit to a test.

Mr Kidd was an interstate truck driver for Linfox. He was directed to undergo a drug and alcohol test while he was in Sydney. However, for reasons that were not disclosed, he was not tested despite presenting twice to be tested. Mr Kidd then returned to Melbourne. He was contacted by various officers of Linfox while on the way back to Melbourne and was allegedly directed to return to Sydney for testing. After explaining that personal reasons required him to return to Melbourne as quickly as possible, he was directed to continue driving to Melbourne.

Mr Kidd was then dismissed for allegedly failing to comply with directions to take the drug and alcohol test. Linfox argued that to reinstate Mr Kidd would put at risk the integrity of its drug and alcohol policy, because workers would know they could not be dismissed for refusing a test.

Decision

While the AIRC agreed that a worker could not refuse a test under an appropriate policy, it found that Mr Kidd had not been trained in Linfox's drug and alcohol policy. While Mr Kidd was aware there was a policy, he was not aware of the details of the testing regime. What he knew about the policy was general and nonspecific. The policy also did not allow more than one test a year, and Mr Kidd had already been tested in the previous 12 months.

The AIRC said that even if there was a valid reason to terminate Mr Kidd, being his refusal to follow the direction to take the drug and alcohol test, termination was disproportionate in the circumstances. The AIRC ordered that Mr Kidd be reinstated.

The AIRC commented that the decision was one that related to one employee and not to the entire Linfox system of testing. If Linfox had been able to establish that the correct procedures had been followed, the AIRC said that the result of this case may have been very different.

Lessons For Employers

Taking disciplinary action against employees under a drug and alcohol testing policy requires careful consideration of the policy, its implementation, and the relevant breach by the employee. A refusal to take a test may be sufficient to warrant counselling or warnings, but not necessarily dismissal.

It is also important that employers ensure all employees are trained in the policy and are aware of the consequences of a breach of the policy. The policy must be applied consistently and the consequences of a breach should be proportionate to the breach. Here, Mr Kidd's dismissal for a refusal to undergo the test was held to be inappropriate in the circumstances and even more so when the policy was itself being incorrectly applied by Linfox.

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