A national logistics company validly dismissed an employee for refusing to provide a urine sample for a random drug and alcohol test, despite his offer to instead produce a saliva sample, the Fair Work Commission has found.
AWH Pty Ltd, which specialises in storage and logistics management, uses random on-site urine testing to screen employees' fitness for work.
It dismissed the stores officer last year after he refused to submit to a random urine test, which it required under its Alcohol and Drug Misuse Policy, conducted by independent qualified testing agency Western Diagnostics Pathology.
The officer had a history of questioning why the company ascribed to certain cut-off levels under its urine testing policy under Australian Standard 4308, which he maintained created a false impression that they reliably measured impairment or fitness for work.
He instead offered a saliva swab after the pathologist failed to answer the officer's questions about the cut-off levels under the policy that he considered to be contradictory and confusing.
The company dismissed the officer for failing to comply with the direction to provide a urine sample, following a series of meetings with management, during which he consistently maintained the test was unlawful.
The employee told the Fair Work Commission his dismissal was unfair because he was entitled to refuse to comply with a policy that didn't follow best practice, and denied his challenge to the testing methodology amounted to an outright rejection of workplace drug testing.
The company argued it had a valid reason to dismiss the officer on the basis that he failed to obey a lawful and reasonable management direction on two occasions in breach of its policy, adding that he was given an opportunity to respond.
Accepting that the company's drug and alcohol policies had been incorporated by reference into his employment contract and were familiar to the employee, Commissioner Bruce Williams said there was "generally no basis" for the tribunal to "interfere with managerial prerogative or an employer’s right to make decisions on how to manage their business including a decision to introduce a workplace policy".
Following the FWC full bench's Endeavour Energy decision (see Related Article), Commissioner Williams yesterday rejected the employee's argument that the policy that favoured urine testing was unreasonable and that his refusal to comply was therefore justified based on his "opinion of 'best practice'".
"In my view a testing policy is not unreasonable simply because an employer could have adopted an alternative approach to testing which an employee would have preferred, and which in some circumstances may have had different consequences or outcomes for tested employees," he said.
Commissioner Williams said the testing methodology was reasonable, and "was a matter for it to decide upon", and the company had a valid reason for dismissing the officer for his repeated refusal to comply with the policy.
AMMA's director of legal and migration services, Amanda Cochrane, who represented AWH in the case, said the resource industry "welcomes this decision which reinforces that urine testing is a reasonable method for assessing drug and alcohol in today’s workplaces".
"Importantly, the Fair Work Commission recognised that the most appropriate party for ensuring the safety and well-being of workers is the employer.
"Every worker has the right to feel safe and not at risk from the potential influence of drugs and alcohol in the workplace and employers take the responsibility to uphold these practices very seriously.
"The ability to choose the appropriate method of drug and alcohol testing is particularly important in the resource industry where employees are working long shifts, side-by-side and often in hot climates," she said.