The Tricky Business of Employee Drug-testing

13 April 2017

For many employers, drug-testing is an absolute must. Difficulties arise, however, in instituting drug-testing policies in the work place. In a recent case involving an employee of the pathology giants, Dorevitch Pathology, the Fair Work Commission (“FWC“) shed some light on the ‘best practice’ for employers looking to perform these drug tests.

As a rule of thumb, Commissioner Michelle Bissett explained, employers should not be taking urine drug samples from people they work with and know, and certainly not from people that an employer directly manages. The reasoning behind this best practice is fairly straightforward – requesting urine from someone you know and work with is, at best, inappropriate. At worst, it removes the necessary professional and impartial nature of drug-testing from the employer-employee relationship, carrying with it a nightmare-scenario of assumptions and conflicted decision-making.

In the FWC case this is exactly what had happened. Dorevitch had received a tip-off from the employee’s disgruntled neighbour who alleged that the employee was a regular heroin user. After objecting to her immediate supervisor’s attempts to collect a sample from her and pointing out how inappropriate it was to be tested by an immediate supervisor, she left work. The employee then took a week off on medical leave, however, given her recent argument with her supervisor regarding the drug-testing, it was assumed that her week off constituted a refusal to be tested. When the employee did return, she was dismissed for failing to follow the drug-testing direction given by management.

While the severity of this case truly hinges on a catastrophic breakdown in communication, it helps to illustrate the need for a drug-testing policy that takes into account the importance of relationship dynamics within the workplace, and the need for ‘blind’ drug-testing policies.

Timothy Ashton of Hentys Lawyers has over 25 years of experience in workers compensation and industrial relations, and has worked with a number of multi-national companies and household names. Please contact Timothy for advice by sending an email to hjk@hentys.com.au.