In the case of Kidd v Linfox Australia Pty Ltd, the
Australian Industrial Relations Commission (AIRC) ordered that
an employee, who was terminated for refusing to submit to a
drug and alcohol test, be reinstated because he had not been
properly trained in, or informed about, his employer's
drug and alcohol testing policy. Further, the employer had not
complied with its own policy, which only authorised 1 test a
year for each employee.
Linfox had a "Vision Zero" drug and alcohol
policy, which had been successful in reducing accident rates,
lost time injuries and other safety issues. The policy provided
for random testing of workers in safety sensitive positions,
such as heavy vehicle drivers and included sanctions for
failing a test or refusing to submit to a test.
Mr Kidd was an interstate truck driver for Linfox. He was
directed to undergo a drug and alcohol test while he was in
Sydney. However, for reasons that were not disclosed, he was
not tested despite presenting twice to be tested. Mr Kidd then
returned to Melbourne. He was contacted by various officers of
Linfox while on the way back to Melbourne and was allegedly
directed to return to Sydney for testing. After explaining that
personal reasons required him to return to Melbourne as quickly
as possible, he was directed to continue driving to
Mr Kidd was then dismissed for allegedly failing to comply
with directions to take the drug and alcohol test. Linfox
argued that to reinstate Mr Kidd would put at risk the
integrity of its drug and alcohol policy, because workers would
know they could not be dismissed for refusing a test.
While the AIRC agreed that a worker could not refuse a test
under an appropriate policy, it found that Mr Kidd had not been
trained in Linfox's drug and alcohol policy. While Mr
Kidd was aware there was a policy, he was not aware of the
details of the testing regime. What he knew about the policy
was general and nonspecific. The policy also did not allow more
than one test a year, and Mr Kidd had already been tested in
the previous 12 months.
The AIRC said that even if there was a valid reason to
terminate Mr Kidd, being his refusal to follow the direction to
take the drug and alcohol test, termination was
disproportionate in the circumstances. The AIRC ordered that Mr
Kidd be reinstated.
The AIRC commented that the decision was one that related to
one employee and not to the entire Linfox system of testing. If
Linfox had been able to establish that the correct procedures
had been followed, the AIRC said that the result of this case
may have been very different.
Lessons For Employers
Taking disciplinary action against employees under a drug
and alcohol testing policy requires careful consideration of
the policy, its implementation, and the relevant breach by the
employee. A refusal to take a test may be sufficient to warrant
counselling or warnings, but not necessarily dismissal.
It is also important that employers ensure all employees are
trained in the policy and are aware of the consequences of a
breach of the policy. The policy must be applied consistently
and the consequences of a breach should be proportionate to the
breach. Here, Mr Kidd's dismissal for a refusal to
undergo the test was held to be inappropriate in the
circumstances and even more so when the policy was itself being
incorrectly applied by Linfox.
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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