A FWC full bench has upheld the dismissal of an employee who refused to provide a urine sample for a random drug and alcohol test because he argued that a saliva sample – which he was willing to give - was more appropriate to assess impairment.

Vice President Adam Hatcher, Senior Deputy President Jonathan Hamberger and Commissioner Michelle Bissett rejected the AWH Pty Ltd stores officer's argument that Commissioner Bruce Williams was wrong in finding that his dismissal was valid because he refused to abide by a "lawful and reasonable request" (see Related Article).

The bench ruled that AWH's direction that all employees take part in the blanket testing was authorised by the company's Alcohol and Drug Misuse Policy, to which the stores officer was "contractually bound to comply".

The direction was also "consistent with common practice in the employer's own enterprise as well as the industry in which it operated".

The bench found that the stores officer had refused to comply with the direction despite the company giving him several opportunities over a five-day period and warning he would be dismissed if he didn't change his position.

"Simply put, he was engaged in conduct that was repudiatory of his employment contract".

The stores officer had a right, the bench said, to seek to change the company's use of urine testing, "but there was a proper way to agitate his issue in the workplace which did not require him to defy his employer's direction".

The bench said it was regrettable that the employee had "put himself in a position where his continuing employment stood or fell on the narrow question of whether his employer's direction for him to undergo a urine test was lawful and reasonable", particularly given that he had no concerns about passing either a urine or saliva test.

It said he could have instead used the dispute resolution mechanism available in the enterprise agreement then in place.

Testing methods controversial on two fronts: bench

The bench said that the issue of whether a urine or saliva sample is the most appropriate workplace drug testing method "has proved to be controversial", with industrial tribunals failing to reach consensus on the matter.

It also noted the controversy over which of "two competing workplace interests" should be given priority, saying the interests "might alternatively be characterised as workplace 'rights' in the social and ethical if not the legal sense".

On the hand, the bench said, "there is the interest of employees in not having their private behaviour subject to scrutiny by their employers" and on the other, "there is the interest that employers and employees have in ensuring a safe working environment by the taking of all practicably available measures to detect and eliminate or manage risks to safety".

After discussing the contentions over testing methods, the bench said it didn't need to resolve the controversy to decide the case before it.

Mr Raymond Briggs v AWH Pty Ltd [2013] FWCFB 3316 (5 June 2013)