Is having an “accident” in your pants a good excuse to avoid workplace drug testing? According to a recent Fair Work Commission decision, the answer is no. In a case that may raise some eyebrows, the Commission ruled that a forklift driver’s summary dismissal was valid and not unfair after he avoided scheduled workplace drug testing.
The workplace drug testing incident
The incident occurred in May this year. Importantly, this was two months after the employee had initially failed drug testing. At that time, he was given clear instructions that further breaches of the company’s drug and alcohol policy wouldn’t be tolerated.
Fast forward to May and the employee was scheduled to undergo workplace drug testing again. His supervisor approached him to let him know about the test, which is when the forklift driver said he’d defecated in his trousers and needed to leave work immediately.
He said he wasn’t trying to dodge the workplace drug testing. He was simply embarrassed and unwell. He quickly left the site and later provided a medical certificate showing he was “unfit for work” for that day and the next.
From the company’s perspective, however, this was no accident. They believed the employee was deliberately avoiding the drug test.
In the Fair Work Commission (FWC) hearing, the employer argued that by avoiding the workplace drug testing, the forklift driver had breached the company’s drug and alcohol policy. They were therefore within their rights to dismiss the employee, because he was working in a high-risk environment and enforcing the policy was a key part of maintaining safety.
The company added that he didn’t attempt to clean up or take the test later. Instead, he left work without any further communication and when the company tried to contact him afterward, he was unreachable. They felt he was using the “accident” as a convenient excuse.
Fair Work Commission’s decision
Like most FWC cases, and indeed legal cases in general, there is more that can be added to this story, but essentially the background isn’t disputed.
The FWC accepted that the employee had genuinely had an accident. However, they also accepted that he had reasonable alternatives – such as going to the bathroom and cleaning up before taking the test. Particularly given that he was on a final warning after failing workplace drug testing two months before.
Therefore, the FWC ruled in favor of the company, agreeing that the forklift driver’s actions constituted serious misconduct. By leaving the work site without completing the workplace drug testing, he breached the company’s drug and alcohol policy for the second time and the dismissal was warranted.
Key messages for employers and employees
The main key message for employers in this case is the need for a robust and detailed drug and alcohol policy.
In the FWC’s finding, they emphasised that safety is paramount, especially in high-risk environments. They highlighted that the company had a drug and alcohol policy, which included provisions for refusing testing and the possibility of summary dismissal for second offenses. These provisions were fair as they were intended to protect everyone’s well-being. By avoiding the test, the employee undermined the integrity of this safety process.
For employees, it’s a reminder to take workplace policies seriously—particularly when a final warning is involved. In addition, as we’ve highlighted many times in our blogs, if you are asked to undertake workplace drug testing you are better to take the test than refuse.
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Is having an “accident” in your pants a good excuse to avoid workplace drug testing? Not according to the Fair Work Commission.
