In a case that confirms a businesses right to set a zero tolerance approach to drug and alcohol use in connection to work, the dismissal of a worker has been found to be fair when he refused a random drug test knowing that he was likely to fail.
The factory worker was at the workplace when he was informed by his supervisor that he had been selected for a random drug and alcohol test as part of the standard safety random testing regime that was in place at the workplace.
The workers response was to leave the site and text his supervisor that he had to “go home sick” and that he “had a few things I shouldn’t have had last night that will come up on the test”. In this message exchange the worker contended that he was ‘fine and capable enough to do his job’ but that he thought he would fail the test and had left the workplace.
The business, having a zero tolerance approach to drug and alcohol use treated the failure of the worker to undertake the testing as directed as if it was a failed test and ultimately dismissed the worker.
In lodging the unfair dismissal claim the worker argued that the business should have done more to make him understand that avoiding the test could end in his dismissal and further argued that he was not impaired and that his work would have been safe.
The business countered that it had given a clear and lawful direction to comply with the random testing, and that the worker was well aware of the repercussions of his choice to take illicit drugs before his shift and of his avoidance of the testing.
To the claim that the worker was not impaired the business argued “He was not in a position to determine his level of impairment. There is certainly a risk that he was impaired. That is why there is zero tolerance to drugs in [the] workplace.”
In handing down the decision that the dismissal was fair Commissioner Lee noted
“I don’t agree the [employer] bore some responsibility for the [worker’s] decision to evade the test and leave the workplace,” he said.
“[The worker] had been directed to attend a random test. It was his responsibility to comply with that request. I don’t accept that [employer] was expected to pursue him. The evidence on this matter does not assist the [worker’s] case.”
“The [worker] refused the test because he knew, or assumed, that he would fail it,” he said.
He “attended the workplace under the assumption that he had detectable levels of THC in his blood stream”, which jeopardised the safety of himself and others in the workplace, the Commissioner said.
Learnings for all businesses
All businesses should take from this case that decisive action in response to failed or avoided tests can be appropriate and upheld under the law, provided the business has clear and well communicated policies, and a reasonable expectation and requirement for safe operations.
In a factory, transport or dangerous goods situation the zero tolerance approach is likely to be justified. By contrast in a purely administrative or remote work context such an approach is likely to be challenged if implemented without additional controls.
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