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Employment Law – Dismissal for Drug Test Refusal Invalid

Employment Law – Background

The Fair Work Commission has held that a company who dismissed an employee for refusing to provide a blood sample for a drug test had no valid reason to do so.

Employment Law – Facts

In essence:

  • Green was employed by Lincon Hire & Sales as a work platform operator
  • On 1 March 2017, Lincon received anonymous information that the employee and others were using drugs
  • Lincon’s drug and alcohol policy allows random drug testing, and asserts that refusal to partake will be considered a positive test, allowing for potential disciplinary action, including dismissal
  • On 6 March 2017 all employees underwent a drug test. Green provided a negative sample. However, Lincon received further anonymous messages claiming that Green and others had used substitute samples
  • On 7 March 2017, Green was informed he had to undergo a blood test because the previous tests had been “fudged”
  • Employees, including Green, felt that a blood test was an invasion of privacy and Green offered to do a urine test instead
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Employment Law – Drug and Alcohol Testing

Employment Law – Background

Drug and Alcohol Testing should be introduced with consultation in a company policy. The rationale is to prevent or rehab rather than discipline employees. However, employers need to consider the reasonableness of implementing a policy. In addition, employers also need to consider whether it breaches privacy law.

Employment Law – Issues to Consider

In essence:

  • Drug and alcohol testing should be introduced on work, health and safety grounds
  • this is because industrial tribunals have generally determined that testing is an intrusion of individual privacy. Therefore, it can only be justified on work, health and safety grounds
  • an employer has no control over what employees do in their own leisure time. Although conduct that may put an a person at risk or damage the company’s business and reputation can warrant control measures
  • because such a policy is to be considered a workplace health and safety matter, consultation with all staff is required
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