It’s a workplace drug testing refusal case with a twist. A case that on the surface may seem simple, but when you delve below the superficial is anything but.
Imagine this scenario, laid out in a recent Human Resources Director HCAMag article. A worker at a poultry processing plant starts his shift early in the morning. Later that day, while riding in a work vehicle returning from a farm, he suddenly becomes unresponsive. His co-workers try for 45 minutes to wake him — nothing works.
Worried, they call an ambulance. When paramedics arrive the worker is found unconscious in the front passenger seat. He eventually responds, but only after “verbal and physical stimulation.” Ambulance service records state that the worker had admitted to taking drugs, however, he refused to say what the substance was.
Over the next few days, the employer tried to gather the facts about the incident. They wanted to know what the employee had taken. Initially he said it was over the counter medication but then changed his story to prescribed medications. When asked to provide proof of the prescription, he then explained the medication was for another member of his household. Again, he couldn’t provide proof.
The employer also wanted the employee to undergo workplace drug testing, which was allowed under their workplace drug and alcohol policy. They give him several options: test at another company site, have a manager come to him, or attend his GP. The worker initially agreed but ultimately refused to undergo the testing due to personal issues.
The employer then organised a meeting to discuss the incident with the employee, who was invited to bring along a support person. However, the employee did not attend the meeting.
Ultimately, the employee’s employment was terminated, around two weeks after the initial incident.
What’s Your Workplace Drug Testing Decision?
The worker challenged the termination and took his case to the Fair Work Commission.
Before we look at their findings, what would your decision be? Was the employer reasonable in terminating the worker’s employment? Or does the employee have a solid case?
After reviewing all the evidence, the Commission found in favour of the employer. They found the worker’s explanations inconsistent and unsatisfactory. Given his unconsciousness, the ambulance report, his evasiveness and refusal to undergo workplace drug testing, the Commission deemed the employer was in the right.
They believed the direction to test was lawful and reasonable given the circumstances. The refusal to undergo testing — in effect equivalent to a failed test — justified dismissal.
Key Lessons for Employees
- When workplace safety is at stake, a request for workplace drug testing is often lawful — especially after an incident.
- Refusing to take a drug test can carry the same consequences as failing one. In some cases, the consequences can be even harsher. In this case, the refusal led to dismissal.
- If you are asked for a test, it may be better to take it — even if you fear a positive result.
Key Lesson for or Employers
- A clear, well-communicated drug and alcohol policy is vital. The policy should state when testing can occur (e.g. after incidents, on suspicion, randomly) and what the consequences are for refusal or a positive result.
- Test directions must be lawful, reasonable, and consistent with policy.
- Procedural fairness matters. In this case, the employer followed procedure in giving the employee a chance to undergo testing, time to respond, a chance to attend a meeting, and access to a support person.
Workplace Safety has the Final Say
When workplace safety is paramount, employers must take adequate measure to protect their workplace – and their employees – from drugs and alcohol. A robust drug and alcohol policy, combined with fair procedures, gives employers the right to direct testing.
If you run a workplace, ask yourself: do you have a clear policy in place?
If you work in a workplace where drug testing is carried out, do you understand your obligations? And if you are asked to test — what would you do?
FEATURED IMAGE CAPTION:
A poultry-processing worker was dismissed for refusing workplace drug testing after he was found unconscious at work. But do you believe the decision was fair?
