The subject of workplace drug testing is a controversial one. There are the competing arguments around whether urine testing or saliva testing is more accurate and also the line line between scrutinising employees’ private behaviour and the need for a safe working environment.
Since at least 1998 it has been accepted by industrial tribunals that drug and alcohol testing, whether it be random or targeted, is a reasonable and legitimate response to the risk to safety posed by employee drug use, even it involves some interference with employee privacy.
There is however, no agreement by the tribunals as to what the most appropriate method of drug and alcohol testing is.
In a recent decision, the Fair Work Commission Full Bench dismissed the appeal of an employee who refused to provide a urine sample for a drug test, because he argued that a saliva sample (which he was willing to give) was more appropriate.
Mr B was dismissed by his employer for repeatedly refusing to comply with a direction to undergo a drug trust involving a urine sample. Mr B’s contract of employment expressly required him to comply with the employer’s policies. In addition, Mr B was given a number of opportunities to comply with the direction over a five day period and was warned about the consequences of continued non- compliance, which included dismissal.
Mr B argued that there was no valid reason for his dismissal, and that his dismissal was unfair, because the direction to take the urine test, whilst lawful, was not reasonable and therefore did not require compliance.
Mr B conceded that the employer could use urine testing if its policy objective was to detect drug use in order for it to be able to manage the risk of such use, rather than to test for functional impairment. Mr B argued that the employer’s policy only provided for testing for impairment while at work and a urine test was not reasonable because it was not a test for impairment.
The initial decision found that:
Mr B’s repeated refusal to comply with the direction to undertake a urine test constituted a valid reason for dismissal;
the direction was a lawful and reasonable one; and
there was no other circumstances which rendered the dismissal unfair.
On appeal, Mr B’s challenged the conclusion that the direction was reasonable.
The Full Bench found that:
the employer’s policy was consistent with standard practice;
a number of the employer’s clients had imposed contractual requirements concerning drug and alcohol testing;
the employer had conducted a blanket urine test each year since 2006 (when the policy was introduced), except for 2011; and
there was no evidence that any employee other than Mr B had ever complained about the mode of testing.
It was held that the direction to Mr B was both lawful and reasonable. It was specifically authorised by the policy, with which Mr B was contractually bound to comply, was consistent with common practice and was reasonably adapted to the nature of Mr B’s employment.
Failure to exercise the requisite standard of care
In another case, Ms S was employed as an assistant at a law book co-operative from 2002 to October 2008. Ms S alleged that another permanent team member, Mr C (her Manager), was responsible for bullying, harassing and intimidating conduct towards her.
Psychological assessments were carried out and expert evidence given at trial. Both experts pointed to a lack of appropriate action taken by the Board of the employer, particularly after becoming aware of the issue as early as 2003. This included failing to investigate and take appropriate intervention steps/actions.
The Court accepted that the incidents described by Ms S had the effect of intimidating her, increasing her anxiety and causing her to moderate her own behavior. It was held that Mr C did engage in workplace bullying and that it imposed substantial and significant emotional stress and distress on Ms S – damaging her mental health and wellbeing during her employment.
The Court held that the employer did not exercise the standard of care reasonably expected of an employer in the circumstances. In determining the failure, the Court articulated that the following behaviour fell short of the requisite reasonable steps/behaviour:
failure to define relations between it and its employees, and between employees- such as through employment contacts, job descriptions and workplace behaviour policies;
a lack of job descriptions, contracts and policies was contributing to the issues and still they failed to implement them- this “inexcusable and unjustified conduct breached its duty of care to the Ms [S]”;
repeated misrepresentations to Ms S that the introduction of contracts, job descriptions and policies was imminent;
a failure to introduce defined procedures for complaints or to appropriately train employees to deal with complaints;
it was inappropriate to rely on employees’ responses as to what action should be taken in response to the complaint;
a failure to give directions to Mr C as to his dealings with the plaintiff- which allowed his behaviour to develop and continue further;
a failure to follow through with an assessment of Mr C that included consideration of appropriate workplace conduct;
failure to investigate what was occurring directly and intervene appropriately;
there was no formal system of enabling employees to seek the assistance of their employer when bullying occurred;
the Board did not arrange or conduct a risk assessment in response to the complaints;
there were inadequate responses to the complaints perpetuated by lack of formal policies and procedures; and
there were no safe return to work procedure in place.
It did not matter that in between complaints, Ms S did not wish to escalate her complaints further. Ms S agreed not to escalate in reliance on the Board’s undertaking and support at the relevant time as they told her they would implement policies etc, (which they never did).
Ms S was awarded $300,000 damages for pain and suffering and loss of enjoyment of life. Pecuniary loss was assessed to be $292,554.38.
A valid reason for termination but the dismissal was unfair on procedural grounds
In this recent decision, the Full Bench of the Fair Work Commission overturned a decision that a boilermaker was fairly dismissed.
Mr H had been employed for nine years and was involved in an incident involving cutting a large steel plate. The employer asserted that Mr H had undertaken or caused to be undertaken that function in an unsafe manner.
At first instance Commissioner Williams found that:
Mr H’s actions in setting up the job were inconsistent with his obligations in respect to safety;
there was a valid reason for the dismissal;
Mr H was notified of the reasons when the employer was considering dismissal; and
Mr H was given an opportunity to respond to the reasons.
On appeal, the Full Bench found that the Commissioner fell into error in finding that Mr H was given an adequate opportunity to respond to the allegations regarding his conduct.
The sequence of events was as follows:
there was a meeting on 13 December 2011 regarding the incident;
at that meeting, the allegations were raised with Mr H and the substance of these was explained to him;
Mr H disputed the allegations; and
a show cause letter was sent to Mr H.
The Full Bench held that it was clear at the meeting on 13 December 2011 that Mr H disputed the allegations and he was in an agitated state. It went on to find that the show cause letter was poorly drafted and although Mr H responded to the show cause letter his employment was terminated without any further discussion or involvement.
On the basis of the above sequence of events, the Full Bench decided that it did not constitute an adequate opportunity to respond given the particular circumstances. The Full Bench also decided that Mr H was not given a proper explanation of what he was accused of and the accusations that were made were ambiguous.
Also relevant for the Full Bench was that the employer had re-enacted the incident without Mr H’s knowledge or involvement.
This case emphasises the need for employers to ensure that along with a valid reason for termination, there must be a procedure whereby the employee is given an adequate opportunity to respond to the allegations against him or her. Similarly, employers must ensure that they properly particularise their concerns to the employee.
