In the recent case of Moore v Specialist Diagnostic Services
Pty Ltd t/a Dorevitch Pathology  FWC 5910, the Fair Work
Commission held that an employee was unfairly dismissed in
circumstances where she refused to take a urine test because it was
not in accordance with the employer's policies or Australian
and New Zealand standards.
The employer received an allegation that Ms Moore, a Collections
Coordinator, was abusing illicit drugs. The HR Department and Ms
Moore's supervisor asked her to attend a meeting during which
they requested her to provide a urine sample.
Ms Moore agreed to provide the sample, however she objected to
her supervisor collecting the sample. She became agitated and
subsequently left the meeting, did not return to work despite
requests and provided a medical certificate stating she would not
be returning to work.
Upon her return to work, in a second meeting with her supervisor
and the HR officer, Ms Moore apologised for her behaviour and again
indicated she was willing to provide a urine sample. She was
terminated that day for serious misconduct for failing to follow
management's reasonable directions.
Ms Moore alleged that she had been unfairly dismissed on the
basis there was no valid reason for her dismissal and she was not
awarded procedural fairness. She further claimed that the
collections procedure proposed by her supervisor and the HR officer
was not in accordance with Dorevitch's policy or Australian and
New Zealand standards.
Commissioner Bissett upheld Ms Moore's claim and found that
her behaviour at the first meeting did not warrant serious
misconduct justifying dismissal. The Commissioner also held that
allowing a direct supervisor to collect the urine sample was in
breach of Dorevitch's policy or Australian New Zealand
standards and therefore Ms Moore was entitled to request that
proper procedure be followed. It was also noted that whilst
Dorevitch's policy allowed it discretion as to when a sample
could be collected and screening methods, the collection process
proposed by Dorevitch in relation to Ms Moore would have also
resulted in a breach of the chain of custody procedure.
Commissioner Bissett also emphasised the need for employers to
adhere to their own workplace policies and best practice, when it
comes to drug and alcohol testing in the workplace.
The employee was awarded $27,900 in compensation plus
Drug and Alcohol Testing
It is important that workplace policies which cover drug and
alcohol testing are carefully implemented, communicated and managed
in the workplace.
Employers must also bear in mind that drug and alcohol testing
should be properly incorporated into workplace policies and
procedures as drug and alcohol issues may also impact on the
employer's work health and safety obligations to workers.
As this decision shows, failure to properly manage drug and
alcohol testing may pose risks for employers, such as
discrimination, bullying and unfair dismissal.
Workplace Policies and Procedures
In general, when it comes to workplace policies and procedures,
employers should ensure that:
they are regularly reviewed and updated;
they are applied as a matter of best practice;
they allow for a certain degree of discretion;
that staff receive training on the organisation's policies
and procedures, particularly those staff who are responsible for
implementing and managing those policies and procedures.
Employers should also be mindful as to whether workplace
policies and procedures are contractually binding, as a breach of a
policy or procedure may then potentially lead to a breach of
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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