Drug testing in the workplace and unfair dismissal

The following is a lengthy extract from a recent unfair dismissal case decided by the Fair Work Commission about the legality and fairness of a termination of employment following an employee declining to undertake a drug test which her employer required her to submit to.

“Consideration

[115] I turn now to the consideration of the matters in s. 387 of the FW Act.

Whether there was a valid reason for the Applicant’s dismissal related to capacity or conduct

[116] The reason for the Applicant’s dismissal was that she failed to comply with a lawful and reasonable direction to undertake a urine test as required by the Respondent’s Drug and Alcohol Policy and the Applicant’s contract of employment, after being given opportunities to comply with that direction and in the face of a warning that she would be dismissed if she did not comply. It is also the case that while the Respondent asserts that the Commission should not accept the Applicant’s evidence that she was suffering from a medical condition at the time of her refusal to provide a urine sample, the Respondent does not assert any dishonesty on the part of the Applicant in relation to that claim as a valid reason for the Applicant’s dismissal. Rather, the Respondent asserts that the Applicant was not suffering from a medical condition to establish that her refusal to comply with the direction was unreasonable.

[117] The Applicant contends that she did not refuse to comply with the Policy based on her view that she could choose an alternative testing method. The Applicant also contends that the requirement that she submit to a urine test and provide a urine sample on 1 February 2021 was not lawful and reasonable because she was suffering from a medical condition – namely a urinary tract infection – and informed the persons conducting the test and the Respondent’s managers that this was the case. Further, the Applicant contends that her dismissal could not have been for a valid reason in circumstances where Mr Rodgers did not know when he decided to dismiss her, that she claimed on 1 February 2021 to have been suffering from a medical condition.

[118] In addition, the Applicant contends that the following matters are a basis for the Commission to find that her dismissal was not for a valid reason. Firstly, the Applicant submits that her selection for testing on 1 February 2021 was not random and that she was targeted for testing on that date. Secondly, the Applicant points to the failure by the Respondent’s managers to ask her to explain her reasons for not submitting to a urine test. Thirdly, the Applicant contends that the Respondent failed to have a face-to-face meeting with her which would have resolved the matter and escalated the situation by sending threatening correspondence to her. Fourthly, the Applicant asserts that the Policy was deficient because it did not provide for a procedure to deal with employees who presented with medical issues which could prevent them from undergoing a urine test and/or that the Applicant’s advice that she had a medical issue was not properly dealt with by Mr Bartkowski and Ms Arrow.

[119] I do not accept the Applicant’s assertion that she did not refuse to undergo testing and simply exercised her right to elect to undertake a saliva test rather than a urine test. The Applicant had no such right under the Policy. The Policy provides for the Respondent to conduct drug and alcohol testing for a range of reasons and using a variety of methods. The methods of testing are broadly expressed and are not limited to those expressed in the Policy which include breath test, urine sample, oral swab or blood test. The Policy does not preclude multiple methods of testing being used. The Policy also provides that a new technology not listed in the Policy may be used for testing. Notwithstanding the breadth of the description of testing methods in the Policy, the method used for testing is at the discretion of the Company.

[120] The Policy does not give employees the right to select the method by which they will be tested. Further, the Policy does not give employees the right to refuse to undertake a test unless a particular method of testing is used or to insist on a particular method of testing. Consistent with its right to nominate its preferred testing method, the Respondent nominated testing by way of urine sample. If the Applicant was suffering from a medical condition which she believed made it difficult or impossible to provide a sample, the Policy did not give the Applicant the right to demand a different method of testing.

[121] I have considered whether the Applicant could have reasonably believed that she had a right to opt for a particular type of testing and I do not accept that this is the case. In my view, the Applicant’s own evidence establishes that she knew that the method of drug and alcohol testing used by the Respondent was urine screening. This is evidenced by the Applicant’s agitation of her view that urine testing is “invasive” and that saliva testing is preferable, on numerous occasions, commencing during the training course she attended about the Policy on 19 March 2019. Thereafter, the Applicant continued to agitate about this issue in emails and discussion with various managers of the Respondent up to and including the Chief Executive Officer.

[122] The Applicant conceded that she was aware of the testing method used by the Respondent when she emailed Ms Whitaker on 19 November 2020. The Applicant also demonstrated her awareness of the Respondent’s testing method in the notes she tendered and her evidence about the discussion she had with Mr Rodgers on 27 November 2020. The level of angst and hostility evidenced by the Applicant’s communication in relation to urine screening as a means of drug and alcohol testing, would have been unnecessary if she believed that the Policy allowed her to select the method of testing that she preferred. The Applicant received responses which disabused her of her view before 1 February 2021.

[123] Accordingly, on 1 February 2021, when the Applicant attended at the Drug Detection Au testing van, she knew that urine testing was required by the Respondent and that the Company had not altered its position in this regard as a result of her agitating (including to the Chief Executive Officer) for saliva testing to be undertaken instead of urine testing. On her own evidence, the Applicant also knew that Drug Detection Au was not engaged by the Respondent to provide saliva testing. Notwithstanding this, the Applicant insisted that she would only agree to undertake saliva testing on 1 February 2021 and that she would not provide a urine sample. I accept the evidence of Ms Arrow and Mr Bartkowski that the Applicant was arguing about the terms of the Policy and insisting on her right to be swabbed. I find that the Applicant did this in circumstances where she knew that she did not have such a right.

[124] Even if the Applicant maintained the view that she had the right to choose the method of testing when she entered the testing van, I am satisfied and find that Mr Bartkowski told her that she did not have the right to opt for swab testing. Further, in the correspondence from the Company after the Applicant’s refusal to undertake urine testing, she was clearly informed that the Company did not accept her interpretation of the Policy and that it was incorrect. Even in the face of this advice, the Applicant continued to press her views about the Policy. Accordingly, I am satisfied that the Applicant knowingly chose to refuse the direction to undertake a urine test and to provide a sample for this purpose.

[125] There is nothing unlawful or unreasonable about the Policy per se that could be relevant to the lawfulness and reasonableness of a direction to comply with the Policy. The Respondent is a supplier of machinery, tools and materials to the construction industry. It is reasonable and legitimate that the Respondent has a program providing for drug and alcohol testing as part of a Policy reflecting its commitment to a safe workplace and preventing or minimising risk of injury or harm to the health and safety of its workers or others at the workplace.

[126] The Policy is expressed to apply to all employees and all persons performing work at the direction of the Respondent. It is reasonable and legitimate that such a policy applies to all employees of the Respondent equally regardless of the work they are required to perform. There is nothing unreasonable about a direction to comply with a Policy which requires managers and office-based staff to adhere to the same rules and values with respect to drugs and alcohol in the workplace, as those working on construction or other sites or with machinery and equipment. Office based staff or sales staff are not immune from risk of injury or harm associated with drugs or alcohol in a workplace and site-based staff may legitimately complain if the same standards are not uniformly applied across an enterprise.

[127] The Policy also provides that a worker (which includes a contractor) may be required to undertake a drug screen and/or alcohol screen test and will be requested to sign a consent form before taking such test. The Policy does not require that the worker consent to a test or sign a consent form. Rather, it states that the result of a refusal to consent will be treated by the Company as a breach of the Policy and may be dealt with accordingly, by the Company taking action against the worker for such breach. The possible action that may be taken against a worker who is an employee, is stated to be disciplinary action which may include termination of employment. There is nothing inherently unreasonable about a direction to undergo a drug and alcohol test pursuant to a policy containing such provisions.

[128] It is not in dispute that the Applicant’s contract of employment required her to comply with the Respondent’s policies including its Drug and Alcohol Policy. Accordingly, a requirement for the Applicant to undertake a urine test was a direction to comply with a policy of the Respondent. That direction was related to the subject matter of the Applicant’s employment by virtue of her contract of employment and therefore fell within its scope. The Policy provides that the Respondent may require employees to undertake testing for the presence of drugs or alcohol in circumstances set out in the Policy. The Policy constitutes a standing direction to employees to undertake testing in accordance with the Policy.

[129] I turn now to consider the Applicant’s assertions about the lawfulness and reasonableness of the direction. The Applicant provided no evidence or submissions upon which I could conclude that the direction to undertake a urine test was not lawful. Allowing for the fact that the Applicant is self-represented, I have considered the Policy in some detail and I can see no basis for finding that the direction to comply with it was unlawful. Accordingly, I find that the direction was lawful. I also find that the direction was related to the subject matter of the Applicant’s employment and fell within its scope. Accordingly, the Applicant was required to comply with the direction unless it was unreasonable.

[130] I do not accept that the medical condition that the Applicant claimed to be suffering on 1 February 2021, is a basis for finding that the direction to undergo a urine test was unreasonable. I have difficulty in accepting the Applicant’s assertion that she was suffering from a urinary tract infection on 1 February 2021. The only contemporaneous evidence that the Applicant had a medical reason for refusing to undergo a urine test on that date, is that the Applicant made a notation on the Drug Detection Au Screening Form stating: “Not consenting personal medical reason”. However, there is a significant amount of evidence to the contrary. The Applicant insisted that she stated to Mr Lee, Ms Arrow, Ms Cobb and Mr Bartkowski that she had a urinary tract infection. Those persons gave evidence and accepted that the Applicant stated that she had a medical reason or condition as a basis for not providing a urine sample but denied that the Applicant said that she had a urinary tract infection. They did not depart from that position under cross-examination.

[131] At the Applicant’s request, Ms Cobb wrote a contemporaneous note confirming the discussion she had with the Applicant on 1 February 2021 in relation to her reason for refusing to provide a urine specimen. The note does not refer to the Applicant stating that she had a urinary tract infection and records that the Applicant requested a different method of testing due to “personal reasons” and that the Applicant stated that the Policy mentions swab testing as a method of testing. In my view it is improbable that the Applicant would have gone to the trouble of requesting that Ms Cobb be a witness to a conversation and prepare a contemporaneous note which was signed and dated by Ms Cobb on 1 February and given to the Applicant and would not have raised with Ms Cobb that the note was not accurate. This is rendered more unlikely by the fact that the Applicant knew that urine testing was the method required by the Respondent and that Drug Detection Au was not engaged to provide swab testing. That this was discussed is also recorded in Ms Cobb’s note. Further, the Applicant knew that her failure to provide a sample would be recorded as a failure and that there would be repercussions under the Policy and had also been reminded of this by Mr Bartkowski. In these circumstances, it is improbable that the Applicant would not have at least raised (on the Applicant’s version of events) a significant inaccuracy in the note, with Ms Cobb and sought a correction. The Applicant did not take this step and I do not accept her explanation for the failure.

[132] The Applicant, Ms Arrow, Ms Cobb and Mr Barkowski also gave evidence of a conversation conducted by speaker phone with Mr Bartkowski. The Applicant maintains that she informed Mr Bartkowski that she had a urinary tract infection during that conversation. As previously noted, the other participants in the conversation dispute this. Further, Mr Bartkowski was adamant in his evidence that during the discussion the Applicant was focused on debating the Policy and insisting that it gave her an option to choose to be swab tested and that she was not refusing to be tested but seeking an alternative testing method, rather than stating the reason for her position. Mr Bartkowski was also adamant that when he requested that the Applicant advise her reasons for refusing the urine test, the Applicant stated “personal reasons”. Ms Arrow supported Mr Bartkowski’s version of the conversation and detailed her recollection which also included that the Applicant was debating the meaning and application of the Policy and insisting that she had an option to be swab tested. Ms Cobb also supported the evidence of Mr Bartkowski and Ms Arrow about this conversation and it is reflected in the terms of her contemporaneous note.

[133] The Applicant also gave evidence of having spoken to Mr Lee before going to the van and before she spoke to Ms Cobb and said that she informed Mr Lee that she would not be providing a urine sample because she had a urinary tract infection. While I accept that the phone call took place, I do not accept that the Applicant told Mr Lee at that time that she had a urinary tract infection and that this was the reason that she intended to refuse the test. Mr Lee’s evidence is that he did not know that the Applicant was suffering from a medical condition, much less the specific details of that condition before the decision to dismiss the Applicant was made. Mr Lee also maintained that he had not seen the Drug Detection Au Screening Form on which the Applicant wrote “personal medical reason” prior to the decision to dismiss the Applicant.

[134] In circumstances where the Applicant did not tell Ms Cobb, Ms Arrow or Mr Bartkowski the nature of her personal or medical reason for refusing to provide a urine sample, it is improbable that she imparted that information to Mr Lee. It is equally improbable that if Mr Lee knew that the Applicant was claiming to have a urinary tract infection, or even a medical condition, he would not have relayed that information to Mr Rodgers. I am also of the view, for reasons set out below, that the reference by the Applicant on 1 February 2021 to making a doctor’s appointment was consistent with her stated intention to have her doctor perform an oral swab test rather than to obtain certification in relation to a medical condition. Therefore, the fact that the Applicant told Mr Lee that she would be going to her doctor, would not have alerted him to the possibility of a medical condition but rather confirmed the Applicant’s previously stated views that oral swab testing was her preferred form of testing, notwithstanding that this was inconsistent with the Respondent’s policies.

[135] Additionally, the Applicant’s failure to mention that she had a urinary tract infection, much less a medical condition, in any of the correspondence where she responded to the allegation that she had refused to comply with a lawful and reasonable direction to provide a urine sample, is striking. I do not accept the Applicant’s explanation for this failure. The Respondent asserted in writing on three separate occasions prior to the Applicant’s dismissal, that her refusal to provide a urine specimen on 1 February 2021, was a failure to comply with a lawful and reasonable direction to provide a urine sample, which could result in disciplinary action up to and including termination of the Applicant’s employment. It is highly improbable that the Applicant, who now claims that the refusal was reasonable because she had a urinary tract infection, would fail to mention this fact in any of her responses to that correspondence. This failure is also at odds with the Applicant’s evidence in these proceedings, during which she repeatedly asserted that it was reasonable for her to refuse to submit to an invasive test by providing a urine sample in circumstances where she had a urinary tract infection.

[136] If more support for the improbability of the Applicant’s evidence on this point is needed, I also consider that the Applicant’s evidence about attending her doctor is inconsistent with her assertion that she was suffering from a urinary tract infection on 1 February 2021. Ms Cobb said that the Applicant informed her that she intended to make an appointment with her doctor to have a swab test and would attempt to have such a test carried out at the police station on her way home from work and this would enable the Applicant to cancel her doctor’s appointment, thereby avoiding the payment of a fee. The Applicant insisted that she made no comment about avoiding paying a fee to her doctor by having the swab test conducted at a police station on the basis that her doctor bulk bills and she would not be required to pay a fee. The Applicant accepted that she did state to Ms Cobb that she would attempt to have an oral swab test carried out at the police station. Ms Arrow also said that the Applicant was talking about going to her doctor to have a swab test performed and Ms Arrow stated to the Applicant that this would not be accepted. In short, the Applicant did not indicate that she was attending her doctor for the purpose of verifying that she had a urinary tract infection or even for purposes including that verification.

[137] When the Applicant did attend her doctor on 9 February 2021, she did not inform the doctor that her reason for refusing to provide a urine specimen on 1 February 2021 was that she had a urinary tract infection. Rather, the doctor’s letter tendered by the Applicant, records that the Applicant stated to the doctor that she had refused to undertake a urine drug test and that she found the test “invasive” and had offered to have a mouth swab instead. Significantly, the doctor’s letter makes no reference to the Applicant having stated that her reasons for refusing the urine test included that she was suffering from a urinary tract infection, or even a medical condition, at the time. This omission is glaring. At the point the Applicant attended the doctor she had received correspondence stating that the Respondent viewed her refusal to provide a urine specimen as a refusal to comply with a lawful and reasonable direction. The Applicant’s case at the hearing of her unfair dismissal application, centred on the assertion that her medical condition provided a reasonable basis for refusing to provide a urine sample. If this had been the Applicant’s position prior to the dismissal, it is highly improbable that the Applicant would not have informed her doctor of this, despite her distress when attending the appointment. I also note that this distress did not stop the Applicant articulating her view that a urine test is invasive and that she wanted to have an oral swab instead.

[138] Further, the letter from the Applicant’s doctor is not contemporaneous with her visit on 9 February 2021 and was probably obtained for the purposes of the Applicant tendering the letter in support of her unfair dismissal application. The doctor’s letter is dated 30 March 2021, and the Applicant’s material for the hearing was required to be filed by 31 March 2021. I also note that other than attaching the Drug Detection Au Screening Form to her Form F2 Application for an unfair dismissal remedy, the Applicant made no mention in that application of a medical issue or urinary tract infection having any relevance to her claim of unfair dismissal.

[139] Finally, I note the view that urine testing is invasive is one that the Applicant held from at least 19 March 2019 when she attended the training program conducted by Mr Bartkowski in relation to the Respondent’s Drug and Alcohol Policy and was repeated by the Applicant on multiple occasions to managers of the Respondent from the Chief Executive Officer down. That view was not limited to 1 February 2021 when the Applicant said that she was suffering from a urinary tract infection. The Applicant’s agreement to undertake a urine screening test in October 2018 does not establish that her position on this point in February 2021 was because of a medical condition she was suffering at that time. To the contrary, it is equally probable that the Applicant had hardened her previous position by February 2021.

[140] It is clear from the Applicant’s evidence that in the months prior to 1 February 2021, she was becoming increasingly angry about the conditions under which she worked, the workload at the Maroochydore Branch and her belief that management of the Respondent was indifferent to these matters. On her own evidence the Applicant was angered by the dismissal of two work colleagues from Maroochydore who failed drug screening tests in or around October 2020. In passing, I also note the Applicant’s evidence that she had undertaken studies related to drug and alcohol abuse. Clearly, the Applicant was passionate about this issue and held strong views about how it should be managed in the workplace. Those views had crystallised into a general opposition to urine screening by 1 February 2021 when the Applicant was required to undertake such a test.

[141] Even if I accepted that the Applicant did have a urinary tract infection on 1 February 2021 that medical condition would not have resulted in the Applicant’s refusal to provide a urine specimen being reasonable. In this regard, I accept Mr Bartkowski’s evidence that he would have informed the Applicant that having a urinary tract infection was not a legitimate basis to refuse to provide a urine sample and that she was required to comply with the Policy and that there would be disciplinary implications if she did not do so. Having observed the Applicant giving her evidence and hearing her views about the invasiveness of urine testing being repeated at every possible opportunity, I find it improbable that the Applicant would have departed from her position in this regard on 1 February 2021 if Mr Bartkowski had informed her of his view that a urinary tract infection was not a basis for refusing a urine screening test.

[142] I do not accept the Applicant’s contention that her selection for testing on 1 February 2021 was not random and that she was targeted for testing on that date. The Policy provides that random testing may be conducted by selection of a group of workers or a worker, and that testing will be random where a worker or group is nominated and is not notified in advance of the testing. I accept Mr Bartkowski’s evidence about how random testing is conducted. I also accept that the Applicant was randomly selected for testing on 1 February 2021 by virtue of a list generated by Drug Detection Au. Even if the Applicant was pre-selected for testing on that date because she had not been tested in late 2020, her selection was still random by virtue of management at the Maroochydore site not being informed in advance that testing would occur on 1 February 2021.

[143] I accept that in correspondence to the Applicant after her refusal to undertake a urine test on 1 February 2021, the Respondent’s managers failed to ask her to explain the reasons for refusal. However, the Applicant was dismissed for refusing to follow a lawful and reasonable direction. The fact that the Respondent did not ask the Applicant the reason for her failure, is not relevant to the issue of whether that failure was a valid reason for dismissal. Similarly, the fact that Mr Rodgers was not aware of the Applicant’s claim to have been suffering a medical condition, is not relevant to the validity of the reason for her dismissal. If a medical condition was a basis for the Applicant’s assertion that the direction to submit to a urine test on 1 February 2021 was unreasonable, then she should have stated this in her response to the allegations. The Applicant had many opportunities to do so. It should also have been clear to the Applicant that the Respondent was disregarding the information she claimed to have provided about her medical condition and that she needed to re-state that information in her response to the allegations.

[144] The Respondent set out an ostensibly valid reason for dismissing the Applicant in three pieces of correspondence sent to her in advance of the dismissal. The reason for dismissal was expressed as a proposition to the effect that the Applicant had refused to comply with a lawful and reasonable direction to undergo urine testing in accordance with the Respondent’s Drug and Alcohol Policy. The proposition accurately reflected the Respondent’s view (and the view of Mr Rodgers) about the Applicant’s conduct and the issue that it considered warranted possible disciplinary action. The Applicant received and understood that correspondence and it was incumbent on her to explain the reasons for her refusal or the reasons why she asserted that she had not refused a lawful and reasonable direction. In short, it should have been patently obvious to the Applicant that she was required to respond to the allegation of refusal to comply with a lawful and reasonable direction by stating the reasons for her conduct. Instead, the Applicant decided to stand her ground and persist with assertions that she had been informed would not be considered an acceptable response to the allegations and failed to mention the principle basis upon which she asserts in the Commission that the request was unreasonable.

[145] On her own evidence, the Applicant is an “over-sharer” and there is no reasonable explanation for the Applicant’s failure to include the fact that she claimed to have been suffering from a medical condition, specifically a urinary tract infection, on 1 February 2021, in her response to the allegations made in three pieces of correspondence sent to her by the Respondent.

[146] The fact that the Application made a notation on the Drug Detection Au Screening Form that she was refusing consent for a person medical reason, did not create an onus on the Respondent to ask the Applicant why she had refused the test or about the nature of the medical reason for her lack of consent to supplying a urine sample. The term “medical reason” is not synonymous with the term “medical condition” and does not make clear that the Applicant was suffering from a particular medical condition when she refused to undertake a urine test. The fact that the Applicant was upset at the tone of the correspondence from the Respondent does not explain her failure to properly respond to it.

[147] I do not accept that the manner of an employee being informed of a reason for dismissal is determinative of the validity of that reason. An employer can rely on a reason for dismissal to satisfy the requirements in s. 387(a) where the reason is not known at the time the employee is dismissed. A reason for dismissal may be valid even in circumstances where the employee is not informed of the reason before being dismissed. A failure to inform an employee of a reason for dismissal before effecting a dismissal may be relevant to the question of whether the employee has been afforded procedural fairness, but this is a separate consideration from the consideration of whether there is a valid reason for dismissal. It follows that a face-to-face meeting to discuss the reason for dismissal is also not determinative of its validity. It was not unreasonable for the Respondent, when confronted with an employee who it believed had failed to comply with a Policy, to communicate its views about this by position

[148] The Applicant also points to the fact that the Drug and Alcohol Policy does not clearly specify the steps that will be taken by testing staff if a worker reports to the testing van and states that he or she has a medical condition which the worker believes precludes the provision of a urine sample, as a basis for asserting that there was not a valid reason for her dismissal. In the present case this lack of clarity does not impact the validity of the reason for dismissal. Despite the fact that the Policy does not specifically deal with this situation, Ms Arrow and Mr Bartkowski dealt with the Applicant in an appropriate manner on 1 February 2021. I accept their evidence about the discussion with the Applicant on that date. That evidence was confirmed by Ms Cobb.

[149] Confronted with the Applicant’s position that she did not consent to providing a urine sample and wanted to be swab tested, in purported compliance with the Policy, Ms Arrow contacted her supervisor, Mr Bartkowski and sought his assistance in dealing with the issue. I accept Mr Bartkowski’s evidence that he asked the Applicant for details of her medical condition and that the Applicant did not state the nature of her condition and instead, debated her view that she had the option to select an alternative testing method. I also accept that had the Applicant informed Mr Bartkowski that she was suffering from a urinary tract infection, Mr Bartkowski would have informed her that she was still required to take the test and that he did not accept that this was a reason for refusing. Mr Bartkowski may also have informed the Applicant that she should obtain a medical certificate to support her claim. However, that medical certificate may not have been accepted as a reasonable basis for refusing the test and in any event, it was for the Applicant to inform the testing staff of the reason for her refusal to comply with the Policy, which she failed to do. The Applicant did not inform Mr Bartkowski or Ms Arrow that she was suffering from a urinary tract infection and this failure on the part of the Applicant was the major contributing factor to any deficiency in their dealings with her on 1 February 2021.

[150] In her evidence to the Commission, the Applicant took issue with the treatment of other staff who have been dismissed following a positive test for drugs or alcohol. The Policy provides for self-reporting by employees who may have issues with drugs and/or alcohol and for support and assistance to be provided to those employees. The Applicant’s allegations of unfairness to other employees go to the application of the Policy to those employees, rather than the reasonableness of the direction to the Applicant to undergo a test. Accordingly, they are not relevant to the issues in dispute in this case and I do not intend to deal any further with these matters.

[151] Another issue raised by the Applicant was that she had not been provided with a copy of the Policy during her employment. Contrary to the Applicant’s assertions, she signed a declaration that she had been provided with a copy of that Policy. In any event, for the reasons set out above, I am satisfied that the Applicant understood the Policy and in particular that she was required to undertake a urine test when directed to do so.

[152] For these reasons I am satisfied and find that the Applicant refused to comply with a lawful and reasonable direction to undergo a urine test on 1 February 2021 and that she had no reasonable basis for the refusal. The Applicant’s contract of employment required her to comply with various policies of the Respondent and she was therefore contractually bound to do so. The Drug and Alcohol Policy gave the Respondent the right to determine the kind of testing that employees would be required to undergo. The direction to comply with the Policy involved no illegality and was lawful. Further the direction was reasonable and the Applicant did not establish prior to her dismissal or at hearing, that she had a reasonable excuse for refusing to comply with the direction.

[153] I am also satisfied that the Applicant unreasonably maintained her refusal to undertake a urine test. On the Applicant’s own evidence, by 9 February 2021, she had recovered from the medical condition which she claims prevented her from undertaking the test on 1 February 2001. The Applicant also accepted that she knew from correspondence sent to her by the Respondent, that she could elect to undertake the test at any time up to 15 February 2021 and that Mr Lee offered her a further opportunity to undergo a test at a meeting on 16 February 2021. The Applicant states that she stood her ground in the face of what she perceived to be bullying and declined to undergo the test. I do not accept that this is a reasonable basis for the continued refusal to undertake the test. Procedural fairness required that the Respondent put to the Applicant the allegations of refusal to comply with a lawful and reasonable direction. On no reasonable view can the correspondence to the Applicant between 2 and 8 February 2021 be described as bullying. That correspondence clearly and unequivocally sets out the allegation against the Applicant and the view that the Respondent is taking about her conduct. On her own evidence, the Applicant had previously undertaken a urine screening test, and between 9 February and 16 February when the Applicant was dismissed the Applicant had no reason to continue her refusal other than she made a conscious decision to stand her ground and refuse the urine test on principle.

[154] I also note that the CEO of the Respondent Mr Rodgers, sent an email to the Applicant on 8 February 2021 stating that all she was required to do to return to work was to undertake a urine screening test in accordance with the Policy. That communication makes clear that regardless of the Applicant’s reasons for refusal, and her failure to explain those reasons to the Respondent’s satisfaction, she still has an option to comply with the Policy and return to work. That option continued to be available until 16 February 2021 – the date that the Applicant was dismissed.

[155] The Applicant is entitled to stand her ground and refuse to comply with a direction to undertake a urine screening test on principle. However, the direction was lawful and reasonable, and the Applicant’s continued unreasonable failure to comply with it, in the face of a clear communication advising that this would lead to disciplinary action up to and including termination of the Applicant’s employment, was also a valid reason for dismissal.

Whether the Applicant notified of that reason?

[156] As a Full Bench of the Commission observed in Crozier v Palazzo Corporation Pty Ltd 64 procedural fairness requires that an employee be notified of a valid reason for dismissal before any decision to dismiss is taken, so that the employee is provided with an opportunity to respond to the reason identified. In the present case I am satisfied that the Applicant was notified of the reasons for her dismissal consistent with this provision.

[157] The reason for the Applicant’s dismissal was that she failed to comply with a lawful and reasonable direction to undertake a urine test as required by the Respondent’s Drug and Alcohol Policy and the Applicant’s contract of employment, and that the Applicant continued to refuse this direction. The reason for the Applicant’s employment being in jeopardy and the reason that she was ultimately dismissed, was clearly set out in three pieces of correspondence sent to the Applicant prior to the dismissal. The fact that the correspondence did not ask the Applicant to explain the reason for her refusal to undertake a urine test, is not a basis to find that the Applicant was not notified of the reason for dismissal. The reason for dismissal was set out in sufficient detail for the Applicant to have been notified of that reason and it was not necessary for the Applicant to be asked for an explanation of her alleged refusal to comply with the direction, and her continued refusal to do so, in order for the Applicant to be provided with sufficient detail to enable her to respond.

Whether the Applicant was given an opportunity to respond to any reason related to capacity or conduct?

[158] I am satisfied that the Applicant was given an opportunity to respond to the reasons for her dismissal. While the Applicant’s responses were deficient this was not because of any lack of opportunity to provide those responses. The failure of the Applicant to respond appropriately to the allegations about her conduct was not because of any lack of clarity about the allegations. The reasons the Applicant’s employment was in jeopardy could not have been clearer and were set out in three separate pieces of correspondence. The Applicant accepts that she understood the correspondence and provided no reasonable basis for her lack of a proper response.

[159] While a face-to-face meeting may have provided the Applicant with an alternative means to provide a response to reasons for dismissal related to her conduct, there is no legislative requirement that such a meeting occur. I do not accept that the Applicant was denied an opportunity to put her position to senior management of the Respondent because there was no face-to-face meeting before the decision to dismiss her was made. Mr Rodgers, the CEO of the Respondent, personally communicated with the Applicant by email informing her that the Company did not wish to terminate her employment but simply sought her compliance with a lawful and reasonable direction.

[160] If the Applicant genuinely believed that the Respondent knew that she was claiming that she could not comply with the direction to undertake a urine test because of a medical condition, and that she would comply with the direction when the medical condition had resolved, then she had ample opportunity to state this in her written responses to the Company’s correspondence. Instead, the Applicant continued to press arguments which she had been informed that the Company did not accept.

[161] Regrettably, I can only conclude that the Applicant used her opportunity to respond to the reasons for her dismissal, to advance her views about drug and alcohol testing and to effectively dare the Company to dismiss her, rather than to provide a proper response.

Whether there was an unreasonable refusal by the employer to allow the Applicant to have a support person to assist at any discussions relating to dismissal?

[162] There were no in-person discussions about the reasons for dismissal. The Applicant did not request a support person and there was no refusal for her to have a support person. Accordingly, this consideration is not relevant in the circumstances of the present case.

If the dismissal related to unsatisfactory performance by the Applicant—whether the Applicant was warned about that unsatisfactory performance before the dismissal?

[163] The Applicant’s dismissal related to her conduct. I am satisfied that the Applicant was warned about her conduct in the correspondence sent to her between 2 and 8 February 2021. As previously noted, the correspondence could not have been clearer insofar as it set out the allegation that the Applicant had failed to comply with a lawful and reasonable direction. However, this consideration is also not relevant in the circumstances of the present case.

What was the degree to which the size of the employer’s enterprise was likely to have impacted on the procedures followed in effecting the dismissal?

[164] The Respondent is a large employer and the size of the Respondent’s enterprise is not likely to have impacted on the procedures followed in effecting the dismissal. Further, there is no evidence of any such impact.

What was the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal?

[165] The Respondent has dedicated human resource management staff and the absence of such expertise is not likely to have impacted on the procedures followed in effecting the dismissal. There is no evidence of any such impact.

Are there any other matters that the FW Commission considers relevant?

[166] I consider that the following matters are relevant to my overall consideration of whether the dismissal was unfair. The Applicant’s uncontested evidence is that she was a hardworking employee with an impeccable employment record. There is no evidence to the contrary from the Respondent. I do not doubt that the Applicant will have difficulty obtaining other employment in the current environment and in light of the fact that she was dismissed and the reasons for her dismissal.

[167] In circumstances where I have found that for dismissal exists, and procedural fairness has been afforded, these circumstances are not of such significance that they to lead to a conclusion that the termination is nevertheless harsh, unjust or unreasonable. Termination of employment in the circumstances of this case is also not outside the range of reasonable responses to the Applicant’s conduct, in light of the opportunities she was given to comply with a lawful and reasonable direction.

Was the Applicant unfairly dismissed?

[168] After weighing the matters in s. 387 of the Act I have concluded that the Applicant’s dismissal was not unfair. The Applicant knowingly and wilfully defied a lawful direction to undertake a urine test in circumstances where she was required by her contract of employment to comply with that direction and it was reasonable.

[169] The Applicant was entitled to hold personal views about the appropriate method for workplace drug and alcohol testing. The Applicant was also entitled to express those views to the Respondent’s management and at training programs she attended, provided she did so in a reasonable and appropriate manner. Further, if the Applicant was aggrieved about the way in which she perceived that the Policy was applied to work colleagues, it was not unreasonable for her to raise this with Mr Lee or another of the Respondent’s managers. Indeed, the Applicant raised these issues and Mr Rodgers met with the Applicant to discuss her concerns in this regard, notwithstanding the rudeness of the Applicant’s communication about her concerns.

[170] The Applicant was also entitled to refuse to undertake a urine screening test on principle. However, the Applicant was not entitled to insist upon her preferred method of testing in circumstances where she was lawfully required to undertake a test using a testing method chosen by the Respondent pursuant to its right to do so and that requirement was reasonable. If the Applicant had a reasonable basis to refuse to undertake a urine test on 1 February 2021, she did not have a reasonable basis to continue that refusal after 9 February 2021, when on her own evidence, her urinary tract infection had resolved.

[171] The Applicant states that she had no concern about passing a drug and alcohol test including a urine screening test, and I accept that this is the case. However, the Applicant’s principles and her conduct in maintaining her position in the face of warnings about the implications of her continued refusal to comply with a lawful and reasonable direction, were inconsistent with the continuation of her employment. In the face of the Applicant’s intransigence, the Respondent’s managers made every effort to give the Applicant an opportunity to comply with the direction and undertake the test. Even on the day of her dismissal, the Applicant could have complied with the direction and remained in employment. The Applicant refused to do so and maintained her position at the hearing of her unfair dismissal application.

[172] The Applicant has failed at the hearing to establish that the direction was unlawful and has also failed to establish that it was unreasonable. The Applicant simply decided to stand her ground and defy the direction. An employee who defies a lawful direction and who fails to establish that the direction was unreasonable, cannot expect to maintain that defiance in the face of warnings that dismissal will result, and not be dismissed.

[173] That the Applicant now seeks to argue that her dismissal was unfair, is entirely inconsistent with her correspondence to the Respondent, including on 8 February 2021, when the Applicant stated that she would maintain her defiance and not submit to urine testing and could not understand why the Respondent was prolonging the matter and had not dismissed her. The Applicant could not have been surprised when the Respondent took up her invitation. Accordingly, the Applicant was the effective architect of her dismissal and it was not unfair.

CONCLUSION

[174] For these reasons, I issued an Order 65 dismissing the Applicant’s unfair dismissal application.”

Taken from Desmond v Lyndons Pty Ltd (2021) FWC 5677 delivered 21 September 2021 per Asbury DP