An employee who failed a drug test lodged an unfair dismissal claim.
An employee who failed a drug test lodged an unfair dismissal claim. PAUL PENNELL

Failed drug test a breach of contract but procedures were key

Workplace Law column by Lisa Aitken

IN PITTS versus AGC Industries Pty Ltd, an employee was informed he was to be tested as part of site-wide testing. The employee provided a urine sample and the on-site testing revealed the presence of amphetamines, methamphetamines and cannabis.

The on-site testing was confirmed by the subsequent testing of the samples at the nominated laboratory with the presence of methamphetamines and cannabis confirmed.

The employee was given three days to provide a "clear sample" and advised a failure to do so may result in his dismissal. This was consistent with the procedure adopted by the employer with all other non-compliant employees.

Following discussions with the employee's union, the date to provide a clear sample was extended for a further seven days.

At the end of this period, the employee provided another sample which was deemed too diluted and therefore unsuitable. While it was not alleged the employee had deliberately diluted the sample, he did confirm he had consumed two bottles of water prior to the test. The employer refused a further extension and proceeded to terminate employment.

The employee made an application for unfair dismissal which was dismissed by the Fair Work Commission. On appeal by the employee, the Full Bench of the Fair Work Commission agreed with the earlier decision, finding that the employee had breached his employment contract by failing to comply with the employer's fitness for work policy, stating:

"… a continuing failure to demonstrate his fitness for work (for more than 13 days as at the date of his dismissal) in accordance with the [employer's] Fitness for Work Policy, with which the [employee] agreed to comply when accepting employment … is consistent with a repudiation."

Key point: Drug testing in employment is a complex issue. The key is having in place a reasonable policy outlining the obligations of the employees and what the consequences may be for breaching the policy.

Employers must also then ensure the consistent application of its terms to all employees to avoid the risk of a successful claim.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. The information in this column is intended as a guide only. Liability limited by a scheme approved under professional standards legislation.

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