By Robby Maygar 

The Fair Work Commission (FWC) has upheld the dismissal of an employee after they refused a lawful request to submit a urine sample under their employer’s drug and alcohol testing policy. 

Earlier this year, an employee of a hardware supplier refused to provide a urine sample on “personal medical” grounds, as they were suffering from a urinary tract infection at the time of the request, claiming that it was invasive and that the employee was unsure if she could even provide a sample with her condition. The employee instead offered to undertake an oral (saliva swab) test. The drug testing organisation engaged by the employer advised the employee that this wasn’t an option and that failure to supply a urine sample would be considered a positive drug test result. 

Concerned that oral drug testing wouldn’t be appropriate due to its shorter detection window, the employer stood the employee down for seven days with pay for the urine sample to be taken at a later date.  

Despite this, the employee maintained their refusal to undergo a urine drug test and the employer ultimately terminated the employment relationship as a breach of the company’s zero-tolerance drug and alcohol policy.  

The decision 

Under the policy, which the employer-provided training on in March 2019, employees could be required to undergo a drug and alcohol screening via a “breath test, urine sample, oral swab and blood test” or any “new technology” not currently listed in the policy. The employee had been put on notice that urine testing may be used and that there was no obligation on the employer to allow an employee to choose the method of testing for drugs and alcohol. The FWC found that the employee was obligated to adhere to the policy as her employment contract clearly stated that failure to adhere to policies and procedures may amount to serious misconduct and potentially termination. 

The employer gave evidence that if the employee “had submitted for urine screening at any time up to 16 February – the date of dismissal – the [employee] would still be employed.”  

On the employee’s refusal to comply with the urine test and the resulting termination of her employment, FWC Deputy President Asbury said: 

“When we’re looking at the criteria for considering whether a dismissal is harsh, unfair, or unjust, you need to give the employee a chance to get it right. And I think the company very clearly gave the employee that chance. … They accepted the fact that she had a urinary tract infection, although there was never any proof of that. And once the infection was resolved, they gave her another chance to do a urine sample.” 

The nature of the employer’s industry, the obligation to ensure health and safety at work, the objective reasonableness of the policy and the employee’s failure to advise of the nature of her medical condition at the relevant time, were such that the FWC determined there was a valid reason for the termination of the employment and that ultimately the termination was not unfair.  

Policies are powerful tools that employers can use to outline the standards and expectations of the company and enforce those expectations. A robust drug and alcohol policy can go a long way to not only allow for drug and alcohol testing to be performed but also give the employer the power to take action against employees who refuse to complete testing.  

If you’re an HR Assured client and need assistance with drafting a drug and alcohol policy, please contact our 24/7 Telephone Advisory Service. 

Not an HR Assured client and need some advice about drug and alcohol policies? The team at HR Assured can support your business on a range of workplace matters. Contact us today to arrange a confidential, no-obligation chat. 

Robby Magyar is a Workplace Relations Consultant at FCB and HR Assured who relishes the opportunity to assist businesses in the best practice approach to managing employees and compliance concerns. He has a particular interest in making employment law and human resources digestible for our clients.