Recent decisions in the Fair Work Commission (FWC) confirm that employers’ requirements to submit to drug testing must be based on safety concerns and cannot unreasonably intrude into their employees’ private lives.
The FWC approaches decisions regarding drug testing with reference to balancing the employees’ right to privacy with the duty of the employer to provide a safe workplace.
The issue arises in regards to the preferred method of drug testing (urine versus saliva) and the appropriate consequences for both refusing and/or failing a drug test.
Urine Vs Saliva Testing
In relation to impairment, cannabis is recognised by the Commission as the most widely used drug apart from alcohol. It is becoming accepted that saliva testing more accurately detects impairment due to cannabis use. The FWC has been told that saliva will return a positive result when the person tested has used the drug recently (within the last few hours). On the other hand urine tests can reportedly fail to detect that someone has just used the drug but will deliver a positive result days after use when the person is no longer affected. In addition urine testing involves a more intrusive procedure in relation to collection of the sample. Both testing methods are able to be exploited by people seeking to evade detection.
In 2012 the Fair Work Commission found that Endeavour Energy would be unreasonable to institute a new policy requiring employees to submit to urine drug testing when employees indicated they would prefer to submit to oral drug testing. In that decision the Commission found ‘that it is precisely because it only detects for recent use that oral fluid testing is a better indicator of likely impairment as a result of smoking cannabis (the most widely used drug apart from alcohol) than a urine test.’
Oral tests are less invasive however not as readily available and are not currently considered best practice. Using these arguments, Endeavour Energy attempted to have the 2012 decision discussed above reviewed but the Commission found earlier this year that ‘nothing happened since the original decision and subsequent appeal in 2012 to indicate that on-site oral fluid testing devices are unreliable’. Endeavour Energy  FWC 198 (15 January 2014).
In The Maritime Union of Australia v DP World  FWC 1523 The FWC outlined the importance of balancing the need to ensure safety in the workplace with workers’ rights to be protected from unnecessary intrusions into their private lives. In that case, the FWC noted that ‘[u]rine testing may reveal personal choices of individuals that do not present a risk to safety in the workplace, but compromise their autonomy and dignity and lead to serious disciplinary consequences including job loss’.
Refusing a Drug Test
Despite the FWC’s rulings in relation to the Endeavour cases, where an employer has an existing policy that requires urine testing an employee’s refusal to submit to urinalysis and request oral testing instead can be a valid reason for dismissal. In Briggs v AWH Pty Ltd  FWC 2017 the FWC concluded that urine testing is a reasonable and legitimate form of testing, and an employer may choose to adopt and require urine testing regardless of whether one or more employees would prefer an alternative approach. If employees know their employer’s policy requires urine testing then the employer is not unreasonable to demand urine testing and refuse a request for oral testing.
Failing a Drug Test
When it comes to dealing with an employee who has failed a drug test, employers may find they are found to have unfairly dismissed an employee where t it can be demonstrated the employee was not impaired by the drug while at work.
In Christopher Toms v Harbour City Ferries Pty Ltd  FWC 2327 even though the employee returned a positive drug test after being in control of a ferry which crashed – it was concluded that he was not impaired by the drug at the time of the incident and that his prior good record in relation to drug testing over a period of long service (16 years) made his dismissal for failing the drug test unfair. The Commission considered that the availability of other sanctions short of dismissal should have been considered and ordered the employee to be reinstated. This decision confirms that Zero Tolerance policies cannot be enforced without consideration of surrounding circumstances. Safety should be central to an employer’s decision to about whether to dismiss someone for failing a drug test
Lessons for Employers
Clearly outline your drug and alcohol procedure and testing requirements.
It will be unreasonable to state that you will adopt a zero tolerance approach and summarily dismiss anyone that returns a positive drug test.
It is considered reasonable to offer re-testing of the original sample if an employee requests it.
If an employee fails a test offer them an opportunity to explain their apparent breach, consider whether the test proves the employee is likely to have been impaired at the workplace (a saliva test more clearly establishes impairment) and the impact the breach has had on the provision of a safe workplace. Consider the employee’s past conduct and any alternative disciplinary procedures before deciding on dismissal.
An employee can safely be returned to work once they have tested negative – however it is usual to make such a return to work at the discretion of an employer.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or for other legal matters please contact our office at firstname.lastname@example.org or call us on 1800 609 945.