Drug Testing in the Workplace

18 June 2013

In the recent case of Briggs v AWH Pty Ltd [2013] FWC 2017, the Fair Work Commission considered the issue of drug testing in workplace. 

The Applicant was dismissed after refusing to comply with his employer’s direction to undertake a urine test.  Commissioner Williams determined that the direction to comply with the policy was reasonable.  Therefore, the Commissioner found that the employer was entitled to dismiss the Applicant because he had failed to follow a lawful and reasonable direction.

The Applicant appealed the decision of Commissioner Williams to the Full Bench of the Commission.

The Full Bench determined that an employer can reasonably direct its employees to undergo urine testing to detect drug use despite previous rulings that such testing was an “unreasonable” means to test impairment.  

The Full Bench stated that determining the most appropriate drug testing method brought into competition two workplace interests: employees’ privacy – which urine testing challenged due to its ability to detect historic drug use, rather than recent – and the interests of ensuring a safe working environment – where urine testing was said to be more effective by casting out a “wider net”.

It found that the employer had the right to direct urine testing to generally detect drug use, rather than impairment, in line with its policy.

Accordingly, the Full Bench determined that the employer’s direction to the Applicant to submit to urine testing was lawful and reasonable and that in failing to comply with this direction he had breached his employment contract. Therefore, it dismissed the appeal.

Urine or saliva testing?

The Full Bench did not determine the controversial issue of whether urine or saliva testing was more reasonable because the appeal before it was confined to whether the employer’s urine testing direction was reasonable as per its drug and alcohol policy.

In the past, the Commission has been divided over whether urine testing is reasonable in light of advances in saliva testing.  However, the Full Bench said that the case before it did not require it to resolve this controversy.  The Full Bench commented that urine testing, as with saliva testing, could not directly detect impairment but that did not mean urine testing was irrelevant to impairment.

Lessons for employers

  • This decision can potentially be relied upon in the future by employers in demonstrating that they have the ability to choose the appropriate method of drug and alcohol testing. 
  • The case does, however, also highlight that employers should warn employees of the consequences of not complying with the policy and give the employees a chance to comply, before considering appropriate disciplinary sanctions such as termination.
  • Employers should ensure that their drug and alcohol policies are up-to-date.
  • Any drug and alcohol policy should be well publicised throughout the workplace. Employees should receive education and ongoing training in relation to the policy.  Incorporating such policies in an enterprise agreement could be considered.
  • A proactive approach to training and education will allow employers to reduce risks to their business and liability for workplace incidents caused by breaches of the policy.