Company failed to meet drug standard testing: FWC


Company failed to meet drug standard testing: FWC

The Fair Work Commission has criticised a mining company for not complying with an Australian Standard for urine drug testing.


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By Hamish Hastie

The Fair Work Commission has criticised a mining company for not complying with an Australian Standard for urine drug testing.

The criticism came during a hearing in which a former employee of MMG Australia Ltd argued against his dismissal for failing a urine drug test.

However, the commission found in favour of the employer, MMG Australia Ltd, which has a zero-tolerance policy to drug and alcohol breaches.

Test identified cannabinoids

Paul Harding was terminated from his explosives-handling role in May last year after failing a preliminary urine test and subsequent laboratory test that identified cannabinoids in his system.

Harding said he had smoked marijuana eight days before the drug test while he was on annual leave and had conducted an at-home test before he returned to work.

He argued MMG’s testing process was not valid because it did not comply with the Australian and New Zealand Standard AS/NZS 4308:2008 (the Australian Standard) for drug testing, which the employer claims to adhere to in its own policies.


Harding argued several points:
  •  his former employer was not an accredited collection facility
  •  the nurse who collected his sample was not qualified to collect specimens because some of her qualifications had lapsed
  •  there was no quality testing conducted on the day of the testing
  •  the chain of custody document was not filled in properly and
  •  the sample was not stored properly while it was being transported for further laboratory testing.
He said failing to meet these standards meant the employer could not rely on the quality of the results.

Commissioner Lee agreed that several aspects of the initial testing process did not meet the Australian Standard.

“I am satisfied that the respondent has in a number of respects failed to comply with the Australian Standard for the collection and transport of the applicant’s urine sample,” he said.

“The fact that the respondent has failed to do so in a number of respects is important but should not be overstated.  It is important because the respondent’s own policies claim that the Australian Standard will be applied and they have failed to comply in a number of respects. Compliance with the Australian Standard is voluntary, not mandated.

“A failure to comply with the Australian Standard means that confidence in the testing process may not be ensured and the integrity of the testing process cannot be taken for granted.

“Compliance with an Australian Standard requires more than simply making a statement of intent, in this case by an employer.

“It requires resources to be deployed to ensure that the objective is achieved.”

Did alleged misconduct occur?

The Commissioner said that if the employer actually complied with the Australian Standard, the conduct of the matter would have been quite different.

“The logical extension of the applicant’s position is that if the Australian Standard is complied with, there can be no question about the integrity of the testing process,” he said.

“The respondent did not do so and therefore a rigorous consideration of the integrity of the test results is required in order to establish whether, on the balance of probabilities, the alleged misconduct occurred.

Despite not meeting Australian Standards, the Commissioner said it was not enough to call into question the results of the test and subsequent laboratory test.

“I am not satisfied that any of the particular failures canvassed give reason to doubt the ultimate laboratory result that showed that the applicant tested positive for THC,” he said.

Commissioner Lee said Harding worked in a safety critical environment and had knowledge of his employer’s zero tolerance policy, putting his misconduct at “the serious end of the scale”.

“The applicant’s failure to follow the respondent’s lawful and reasonable direction to be free from illicit drugs was the reason for his dismissal. The reason is sound and defensible,” he said.

The application for unfair dismissal remedy was dismissed.

Harding v MMG – [2018] FWC 594

This article was provided by the Chamber of Commerce and Industry WA.
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