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FWC cases offer lessons in drug & alcohol testing best practice

Given the serious consequences of drug and alcohol impairment in the workplace, two Fair Work Commissioners recently issued separate warnings that all employers can learn from to avoid pitfalls in best practice policies and procedures.

Danger in detection periods

In a ruling this month involving Coles supermarket and an employee who tested positive for cannabis after a forklift accident, Commissioner Peter Hampton warned employers about providing information on drug detection periods when enforcing a ‘zero-tolerance’ policy.

As part of the employee’s argument, which the Commissioner eventually dismissed, the employee claimed his dismissal without notice was unfair because he was advised during induction that the window of detection for cannabis when subject to oral testing was between three and six hours after consumption.

The employee claimed he last consumed cannabis the evening before his attendance at work and well outside what he thought to be the detection period. Contradicting this, however, a high THC reading from the laboratory indicated that consumption was much closer to the timing of the samples taken for testing.

Noting that the information about the detection period did not provide an explanation for the breach of Coles’s drug and alcohol policy as it was given as an indicative guide only, Commissioner Hampton said it is still a relevant factor to be considered.

“The information about the indicative detection window is relevant and information about how a policy will be applied, or the consequences of a policy provided by an employer to the employees, will generally be a factor to be weighed into the overall assessment of a dismissal,” he said.

“There are potential dangers for an employer in providing information about detection periods to the extent that this information might detract from the zero tolerance message in the policy itself

“It may also, depending upon the overall information actually provided, be misleading given the variations that exist between individuals and the unpredictable potency of various illicit drugs.”

Click here to view the decision.

Involvement of direct managers

A separate Fair Work Commission ruling this month serves as a warning about managers collecting drug and alcohol test samples from their subordinates and the importance of complying with the national standards.

Commissioner Michelle Bissett found an employee of Dorevitch Pathology was unfairly dismissed following a series of events which began with her refusal to undertake a urine drug test.

The employee was asked to provide the urine sample after the employer was notified by the employee’s neighbour that she was under the influence of drugs, including heroin.

After Dorevitch’s HR manager and the employee’s direct manager requested the urine sample, the employee refused on the grounds that it was not appropriate for an immediate supervisor to collect the sample and that the procedure was not compliant with the chain of custody requirements in the company’s drug testing policy and the Australian/New Zealand Standard.

Although Commissioner Bissett was satisfied that Dorevitch had grounds for requesting a urine drug test from the employee, she was not convinced the company’s approach was best practice.

“I am satisfied that it is not best practice to take a urine drug sample from a person you work with and know and certainly not from a person you directly manage,” she said.

“I accept that the process proposed by Dorevitch to take a urine sample and test for the presence of drugs was not in accordance with its own policy for drug and alcohol testing or the Australian/New Zealand Standard.”

Commissioner Bissett also found there was confusion among management as to whether the employee was dismissed for refusing to follow management’s direction in taking the drug test or for leaving work on the day and failing to follow management’s instructions to return to work.

Compensation was awarded to the employee but reduced by 10% in recognition of ignoring management’s phone calls and requests to return to work on the day she was requested to provide the urine sample.

Click here to view the decision.

Implications for employers

These decisions highlight the importance of clearly articulating a zero tolerance drug and alcohol policy and the actions that will be taken in the event of a breach. Employers should also ensure that any information provided on drug detection does not mislead employees or detract from the zero tolerance message.

Ensuring drug and alcohol testing procedures are carried out in accordance with the national standard and the company’s formal policy will also mitigate against costly legal action.

AREEA’s employee relations consultants are experienced in developing drug and alcohol testing policies and procedures specific to resource industry workplaces, and can provide advice on the latest best practice and standards.

Click here to find a consultant near you.

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