Drug and Alcohol Policies and Testing

In a recent Fair work Commission case, an employee was found to have been unfairly dismissed for refusing to take an alcohol breath test as the employer’s policy was not only unclear, but the employer didn’t actually follow the policy as written.

After attending a long lunch a number of employees returned to work. One of the employees was noticed acting inappropriately and when asked to take a breath test agreed that he had been drinking and resigned. However, another employee who claimed she had only had one drink was also asked to take a breath test and refused, asking to know on what grounds the test was required. Having refused the test the employee was stood down until a formal meeting was held. Four days later at the meeting her employment was terminated for serious misconduct.

There was a Drug and Alcohol Policy that required employees to be alcohol free and did allow testing based upon ‘reasonable suspicion’ and even random testing. However, it did not set out what happened if an employee refused such a test.

The Commission found that the employee was entitled ask why the test was being required. She was not shown a copy of the policy or told of any specific section that allowed the employer to request a test. The policy also failed to specify any penalty or sanction for refusing a test.

The Commission found that, in the circumstances, the employee's refusal was justified.

The Commission found that the direction to take the test was not reasonable, and the decision to dismiss the employee was not sound, defensible or well founded. The employee was awarded $63,500 in compensation.

So, what should an employer do?

o Draft clear policies specific to your workplace.

o Ensure testing strictly follows established procedures.

o Ensure procedural fairness when investigating allegations.

o Regularly review and update policies.