Background
Finding in favour of the employer, the Fair Work Commission in M v Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal dismissed the application of an employee who refused to supply a sample for a drug test.
Facts
In essence:
- in February 2016, an employee at a coal mine was selected for a drug and alcohol test at the commencement of his shift
- the tester found the first urine sample to be hotter than expected and the sample strip failed to record the temperature as it would’ve exceeded 38 degrees although the employee’s ear temperature was 36.4 degrees
- as soon as the first urine sample cooled to 38 degrees, it was tested but did not provide a reading
- according to the employer’s procedure, the first urine sample should have been discarded as it was too hot
- the tester asked the employee for a second urine sample and asked whether or not there were any symptoms that could increase the temperature of the urine to which the employee denied
- the second sample was 34 degrees and was quite turbid and cloudy similar to the first and also tested negative for drugs
- the manager was contacted due to suspicions the sample was provided by another person and a third sample was requested
- the employee initially agreed but became agitated and argumentative and refused knowing that refusal would be a breach of the employer’s drug and alcohol procedure
- the employee was stood down and returned to work on 29 April 2016
- on 30 June 2016 the employee was issued a final written warning regarding his refusal to provide the third urine sample
- the employee applied to the Fair Work Commission to resolve the dispute in accordance with his employment contract and s739 of the Fair Work Act
Decision
The Fair Work Commission:
- was satisfied the employer had a reasonable basis to request a further drug test ‘for cause’
- this cause being to protect other employees from the risk of harm
- confirmed the tester failed to adhere to the required drug testing procedure for the first sample and the second sample but did this not give rise to a right of the worker to refuse further testing
- found it was not unreasonable for the employer to issue a final written warning
- found it was not unreasonable for the employer to conduct further testing on the employee
Tips for Employers
Our Matthews Folbigg Workplace Solutions employment law team recommends employers:
- consider this Fair Work Commission decision
- seek the assistance of an employment lawyer to understand the impacts of this Fair Work Commission decision
- prepare a clear drug and alcohol testing employment law policy in compliance with employment laws (which an employment lawyer can advise on)
- consider the need for the drug and alcohol testing employment law policy to meet the requirements of the relevant Australian Standard for drug and alcohol testing in the workplace (which an employment lawyer can advise on)
- consider how the drug and alcohol testing employment law policy interacts with other employment law policies (such as work health and safety)
- prepare or update new employment contracts inclusive of a drug and alcohol testing clause (which an employment lawyer can advise on)
- train staff about the drug and alcohol testing employment law policy
- fairly, consistently and lawfully respond to breaches of employment contracts and employment law policies
- understand what employment laws apply at your workplace including Awards and enterprise agreements and whether they contain clauses relating to drug and alcohol testing (which an employment lawyer can advise
- review your employment contracts and employment law policies at least once every 12 months to ensure they remain current with workplace practices and all employment laws
For More Information
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635-7966 to speak with one of our employment lawyers.
