Urine drug test direction was reasonable: Full Bench

Urine drug test direction was reasonable: Full Bench

http://www.workplaceohs.com.au
A worker repudiated his contract of employment when he refused to comply with a lawful and reasonable direction to submit to a urine drug test, the Full Bench of the Fair Work Commission has confirmed.
When RB refused to do so, he was advised in writing that his employment would be terminated unless he changed his position. However, RB persisted with his refusal to undergo the urine test and was dismissed.

Subsequently, RB lodged an unfair dismissal claim with the Fair Work Commission. He argued that the A&DM Policy was concerned with testing employees for impairment at work only, and thus a direction for him to undergo a urine test, being a test that was incapable of detecting impairment, was not reasonable. RB relied on the fact that AS 4308, the Australian Standard for drug testing urine, states that ‘[t]his standard has no relevance to impairment’.

In April 2013, Fair Work Commissioner Bruce Williams determined that the urine testing direction was lawful and reasonable, RB’s repeated refusal to comply with it constituted a valid reason for his dismissal, and no other circumstance rendered the dismissal unfair.

An appeal was lodged by RB. In essence, he challenged Cmr Williams’ conclusion that the relevant direction was reasonable. It was his view that the direction to take the urine test, while lawful, was not reasonable and therefore did not require compliance.

An ongoing debate

In a decision released last week, the Full Bench (VP Hatcher, SDP Hamberger and Cmr Bissett) examined the controversy around whether the most appropriate method of workplace drug testing is by the collection and analysis of a urine sample or a saliva sample. This controversy, they explained, exists at two levels:

‘Firstly, [the] scientific debate as to which method best detects drug use of a nature that may affect workplace health and safety. At the core of this debate are the propositions that urine testing is the more accurate means of determining whether an employee has at some time consumed any one of a range of drugs of abuse, but that saliva testing is better at identifying likely present impairment from drug use (particularly cannabis use) because it only detects very recent use.

Secondly, [the] controversy over which of two competing workplace interests … should be given priority in the selection of the appropriate testing method. On the one hand, there is the interest of employees in not having their private behaviour subject to scrutiny by their employers. On the other … there is the interest that employers and employees have in ensuring a safe working environment by the taking of all practicably available measures to detect and eliminate or manage risks to safety.’

The Full Bench noted that it has been accepted by industrial tribunals in the past that the implementation of a program of random and targeted drug testing is ‘a reasonable and legitimate employer response to the risk to safety posed by employee drug use, even if that involves some interference with employee privacy’.

MediNat Comment:

It is about safety! not only the individuals but others that may be implicated in an incident caused by someone under the influence or impaired by drugs, including alcohol.

Tell the policeman testing you on the road that it is an invasion of privacy! somehow don't think you will get a sympathetic response. Why because it is all about personal and public safety, no different to the workplace.

MediNat wholehearted supports workplace drug testing as:

1. creating a safe environment for all workers and others who may come into contact with them
2. a deterrent against using drugs in any form
3. an intervention in a life that may spiraling out of control by using drugs
4. duty of care, as an employer, and as an employee

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