Employee validly dismissed for refusing to submit to urine sample analysis

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Employee validly dismissed for refusing to submit to urine sample analysis

The Fair Work Commission has determined that an employer was within its rights to dismiss an employee who refused to comply with its company policy that employees must submit to urine testing. In doing so, the Commission ruled that the request was both lawful and reasonable and that the employee’s position on refusing the test constituted defying a lawful direction triggering the ability to legally dismiss the employee.

The worker had been employed as an Internal Salesperson by Lyndons Pty Ltd (Lyndons) from 1 September 2016 to 1 February 2021. She was dismissed for what Lyndons described as a continued refusal to follow a lawful and reasonable direction to provide a urine sample for the purpose of a drug and alcohol screening test, in accordance with Lyndons Drug and Alcohol Policy (the Policy).

The worker had refused to provide a urine sample as, at the relevant time, she claimed that she was suffering from a personal medical condition. She did offer to undertake an oral swab to confirm that she was fit to perform her duties and that this method of testing was contained within the Policy. Accordingly, she claimed that she did not breach the Policy, and consequently, her refusal to provide a urine sample was reasonable.

The purpose of the Policy is to prevent or minimise any risk of injury to workers and others at the workplace from the use of alcohol or drugs. While initially introduced on a low scale and random basis, Lyndons had increased the number of tests and number of staff tested due to significant numbers of positive tests being recorded. Breach of the Policy could lead to disciplinary action up to and including termination.

During testing phases, the worker began to email management, raising concerns with the type of testing been undertaken. At one point, she approached Lyndons’ CEO and told him that urine testing was an invasion of privacy and that swab testing was sufficient to ensure that employees could perform their duties safely.

On 1 February 2021, the worker was randomly selected for testing. She told the testing nurse that she would not be supplying a urine sample for an undisclosed personal medical reason at the time. The Unit manager then approached her to inform her that if she did not provide a urine sample, it would be deemed as a refusal to be tested. She was then sent home by Lyndons’ management.

The following day Lyndons wrote to her advising that further refusal to comply with the testing requirements would result in disciplinary action up to and including termination. She responded, claiming that she had not refused to undergo drug testing but was simply refusing to participate in an invasive procedure. Further correspondence occurred on similar lines, but ultimately she was terminated on 16 February 2021.

Deputy President Asbury accepted that the employee “had no concern about passing a drug and alcohol test including a urine screening test“.

The undisclosed underlining medical condition, a UTI, was resolved within nine days; however, the employee maintained her objection.

The decision of Deputy President Ingrid Asbury was unequivocal. As she commented,

“the Applicant’s principles and her conduct in maintaining her position in the face of warnings about the implications of her continued refusal to comply with a lawful and reasonable direction, were inconsistent with the continuation of her employment…the Respondent’s managers made every effort to give the Applicant an opportunity to comply with the direction and take the test…The Applicant has failed at the hearing to establish that the direction was unlawful and has also failed to establish that it was unreasonable. The Applicant simply decided to stand her ground and defy the direction. An employee who defies a lawful direction and who fails to establish that the direction was unreasonable, cannot expect to maintain that defiance in the face of warnings that dismissal will result, and not be dismissed”.

The application was dismissed.

K D v Lyndons Pty Ltd T/A Lyndons (U2021/1388) 21 September 2021

For questions about drug and alcohol testing, employee refusals to take directions, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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