Unfair dismissal and workplace drug testing

Here is an extract from the Fair Work Commission’s quarterly review for practitioners of important decisions which deals with the principles which essentially allow an employer’s policies and procedures to govern issues such as how drug testing is to be compiled with and making the point that this is matter for the employer to determine, not the employees.

“The applicant in this unfair dismissal matter was employed as an internal salesperson from September 2016. The applicant refused to provide a urine sample for drug testing in accordance with the respondent’s policies on 1 February 2021 due to a personal medical condition. The applicant was willing to provide a saliva sample in lieu of the urine sample. The respondent’s policy did not allow for employees to choose a method of testing. The respondent informed the applicant by email that they had no right to choose the testing method, the applicant was told that further refusal to comply with the direction would result in disciplinary action up to and including termination of employment. The applicant continued to refuse to provide a urine sample when further requests were made. The applicant was dismissed for failing to follow a lawful and reasonable direction. The applicant submitted that the requirement to provide a urine sample was not a lawful and reasonable direction. The applicant further submitted that their request for alternative testing method was not a refusal to comply with the respondent’s policies.

 

Outcome

The Commission considered that the respondent’s policies provided that the method of drug testing was at the discretion of the respondent. The Commission considered the applicant refused to follow a lawful and reasonable direction when she refused to provide a urine sample after being informed that she had no ability to choose the testing method. The Commission found the direction to provide a urine sample was lawful and reasonable. The Commission was not satisfied the applicant’s personal medical condition rendered the direction unreasonable. The Commission noted that the applicant did not refer to her personal medical condition in any contemporaneous correspondence. The Commission found that the applicant had no reasonable basis to refuse the lawful and reasonable direction. The Commission also found the applicant unreasonably maintained refusal to provide a urine sample and, considering the applicant was told that refusal would lead to disciplinary action including termination, there was a valid reason for dismissal. The Commission was satisfied that the applicant was notified of the reason for her dismissal and given an opportunity to respond. The Commission found that the dismissal was not harsh, unjust or unreasonable and therefore not unfair. The application was dismissed.”

 

Desmond v Lyndons Pty Ltd trading as Lyndons [2021] FWC 5677 delivered 21 September 2021 per Asbury DP.