Refusal to undergo drug test – employee awarded compensation

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Refusal to undergo drug test – employee awarded compensation

An employee who was dismissed after he refused to undergo a urine test as part of a random drug test was awarded $37,000 in compensation after the Industrial Commission (SA) found that the employee was not in a job that required zero tolerance.

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An employee who was dismissed after he refused to undergo a urine test as part of a random drug test was awarded $37,000 in compensation after the Industrial Commission (SA) found that the employee was not in a job that required zero tolerance.

The concept of zero tolerance was argued at length and in the circumstances of the case the Commission found the policy unclear and internally inconsistent.

Background

The employer dismissed the applicant man after he agreed to a breath test (for alcohol) but refused a random urine test.

He was issued a final warning and was then dismissed. All workers who tested positive the morning of the tests were suspended on full pay pending the final results, which were released several days later. None were offered blood tests.

Evidence

The Commission considered a large amount of evidence and noted some evidence from an expert witness:

  • One can never be 100 per cent sure whether a particular blood-alcohol reading in a person would or would not have resulted in impairment. It is an indicator of likelihood but one can never be certain because there are other factors to be considered such as tolerance, pattern of consumption and the environment in which consumption took place.

  • If there were traces in the urine of cannabis, amphetamines, benzodiazepines, opiates, barbiturates, cocaine, ethanol or alcohol, then one could say that it was possible that the person concerned may be under its influence, but one could not tell for sure by a urine test alone;

  • The higher the concentration of THC in blood the more one can say about the 'recency' of cannabis use in terms of being more confident about the time of consumption or at least reducing the window of time in which consumption is likely to have occurred.

Decision

Commissioner Dangerfield stated:

‘Having carefully considered the respective submissions I find that the policy in the AWA wasbadly flawed in the manner contended by the applicant.

'It was unsuited to the purpose for which it was intended. It was internally inconsistent. The applicant was not offered a blood test as he should have been on what I have found to be the proper construction of the policy...

'I find that the AWA Policy was harsh and unreasonable in terms of the stark choices that it presented the applicant in terms of how he would have to conduct his private life if he were not to fall foul of the Policy. I conclude therefore that, of itself, the AWA Policy could not provide a sound foundation for his dismissal...

'The combination of the test methodology and the AWA policy would therefore have been to create an injustice, because anybody sacked on the basis of the test alone would be unfairly sacked, given that the test cannot establish whether they were under the influence.

'It is proof of nothing more than exposure.

'While a reasonable policy would have quite specifically provided for an employee to be given an opportunity to explain or defend a positive test result(s), the reality here is that, apart from the fact that what was being asked of him was, in context, unfair, he had no other valid explanation for his conduct. The only thing on which he can rely - and yet the only thing on which he needs to rely - is that what was being asked of him and the manner in which he was about to be dealt with, was in all the circumstances, harsh, unjust or unreasonable.

What Should the Employer Have Done?

'It seems to me that had the applicant chosen to take the test, and had he tested positive as anticipated, then the reasonable thing for the respondent to have done would have been to take him to Kadina for a blood test.

'Had the blood test cleared him from being under the influence (as it probably would have) the respondent could have at least warned him that he had a reading that indicated exposure to cannabis; that as a result, he may be taking unnecessary risks with his employment, and in that context, reminded him of the seriousness of potential impairment at work due to the use of drugs.

'The respondent could have made it clear to the applicant that his conduct in and around the workplace was going to be closely monitored for any signs of impairment.

'The respondent could then perhaps have provided him with some counselling, or at least have suggested that he get some counselling, and told him that there would be another random test at some point in the near future. In this way, and in particular by issuing a warning or caution rather than moving straight to dismissal, the respondent could have made it perfectly clear that it was prepared to take all reasonable steps to ensure a workplace free from the harmful influence of alcohol and drugs.

'Of course the applicant refused the test. In these circumstances, he should have been similarly offered counselling etc, advised of the respondent's intention to closely monitor him for any signs of impairment in the future and that if the respondent was of the view that he may be impaired, he would be taken immediately for a blood test.

'As opposed to these respective courses of action, the "sudden-death" dismissal scenario that occurred here was inappropriate. In all the circumstances I find that the dismissal was harsh, unjust or unreasonable.'

See: Perkins, Ashley Bert v Golden Plains Fodder Australia Pty Ltd/ Macpri Pty Ltd – Dangerfield C – 3 February 2004. 

See also: Recommendations from AIRC on new alcohol and drug policy, Union pressure to change alcohol & drug policy, and Drug and alcohol in the workplace: protecting employees and employers.

 

   

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