A recent decision of the Fair Work Commission highlights the stringency required when conducting drug testing on employees.

In this case an employee refused her employer’s direction to provide a urine sample by:

• objecting to her immediate supervisor collecting it because it was inappropriate to have someone she knew, and worked with closely, taking the sample; and
• stating that the collection was not in accordance with the employer’s policy.

The employee was subsequently dismissed for serious misconduct in relation to her failure to follow management’s reasonable direction to undergo a urine drug test to determine if she had any illicit drugs in her system.

The Commission determined that it was not best practice to take a urine drug sample from a person you work with and know, and certainly not from a person you directly manage. The employer also did not comply with its own collection protocols when proposing to undertake the drug testing.

Ultimately, it was held that there was no valid reason for the dismissal based on a number of factors (including the provision of a valid medical certificate and a willingness by the employee to provide a urine sample at a later date). Even if there had been a valid reason, the lack of procedural fairness afforded by the decision-makers and the uncertainty as to the reasons for dismissal would have rendered the dismissal unjust.

Lessons for employers

• Establish a clear drug testing policy and comply with it.
• Consider the most appropriate individuals to undertake the testing and do not allow managers to undertake testing of their direct reports.
• Be clear on the steps required under a policy and the reasons for dismissal. An unclear drug testing policy and unclear or confused reasons for dismissal may result in a dismissal being held to be unfair.