Sometimes it is good to just step back for a minute, take a breather, and recall why certain policies and procedures are critical to business operations. It is easy to get wrapped up in day-to-day operations and individual events and lose sight of the ultimate goal. As each Australian company works through incidents involving drugs and alcohol, it is becoming clear that the case for developing a drug and alcohol policy is stronger than ever.
One of the responsibilities managers find unpleasant is the termination of employees for any reason. As the use of illicit drugs grows in Australia, there are more cases in which workers are terminated for using drugs or alcohol in the workplace. In turn, there are more cases being litigated as employees claim unfair dismissal. As each case is assessed on its own merits and a decision is made concerning the termination, employers benefit from the guidance and learn something new. However, underlying whatever is learned is a common theme: It is critical that every business have an AOD policy. Without the policy, employers have a much higher risk of losing a worker’s unfair dismissal claim.
What Did the Policy Say?
In 2009, in the case of Ruddell v Camberwell Coal Pty Limited T/A Integra Open Cut Mine, Mr. Rudell claimed unfair dismissal.1 The dismissal was on the grounds of serious misconduct because he knowingly submitted a false urine sample during a random drug test. The Mine Technician operated and worked around a lot of mobile machinery in a small area where there were a lot of other employees also operating equipment. His position was considered safety sensitive, and thus Mr. Rudell was required to submit to a random drug and alcohol test.
Briefly, the mine worker submitted a urine sample in a special specimen cup that measures the urine’s temperature. The temperature did not meet required body temperature, and the tester tried to find a thermometer to do a separate check. Whilst looking for a thermometer, the applicant left the room. That meant the urine sample was not always kept in sight of Mr. Ruddell and the tester. After approximately an hour-and-a-half, Mr. Ruddell did provide a second urine sample that had the right temperature and resulted in a non-negative result for cannabis.
The second sample was then sent to a laboratory for confirmatory testing. Mr. Ruddell was terminated because he put “his own recreation ahead of the safety of the people around him and himself.”2 The dismissal was upheld on the grounds Mr. Ruddell provided a false sample. However, here is the basis for the decision: The company’s AOD policy stated that a worker could be dismissed if he or she “deliberately adulterated or falsified a sample.”2
Clear and Unequivocal…but Fair
All throughout Fair Work’s decision is mention of the employer’s alcohol and drug policy and procedures. Since the employer, employee, and union had agreed on the policy and procedures, the worker was expected to adhere to it and accept the consequences for violating it. In developing, implementing, and communicating the AOD policy, the employer was exercising duty of care and fulfilling an obligation to minimise safety risks. A policy communicates expected worker behaviours and limits legal liability.
An effective policy has certain characteristics that include the following:3
- Presents a clear and unequivocal policy statement
- Does not violate laws concerning prescription drug use or certain cases in which drug dependency is considered a disability
- Does not intrude into worker privacy except as allowed by law for AOD workforce testing; i.e. drug test on Monday reveals cocaine was used over the weekend when the person was not working
- Defines reasonable and consistent AOD testing practices
- Specifies how onsite or mobile drug & alcohol testing will be carried out, i.e. random basis and the designated time period (not specific days or times – just a general time period)
- Explains the consequences for various actions like testing positive, refusing to take a test, knowingly falsifying or adulterating a sample, repeat offenses, etc.
- Sets out the formal review process and the factors that will be considered during the disciplinary process
- Sets out the termination policies and procedures
There have now been a number of unfair dismissal cases brought by employees against their employers. The employers who win are the ones who have a strong AOD policy that is fairly and consistently applied. The policy needs to have some flexibility in terms of the review and disciplinary process because each situation is different. However, each decision concerning testing and consequences should be based in the employer’s duty of care to the safety of the entire workforce.
Contact Mediscreen for expert assistance with onsite drug and alcohol screening services. Mediscreen also offers mobile AOD screening through the use of a state-of-the-art equipped testing van. Mediscreen is NATA accredited to AS 4308 and section 2 of AS 4760 and uses breathalysers calibrated by a NATA accredited recalibration laboratory.
References
1 Fair Work Australia. (2010, November 12). Decision – Mr. Leonard James Ruddell v. Camberwell Coal Pty Limited T/A Integra Open Cut Mine. Retrieved from [2010]
FWA 8436: http://bit.ly/1hqGhyM
2AMMA. (n.d.). False urine sample is grounds for dismissal says Fair Work Australia. Retrieved from AMMA: http://bit.ly/1fszgh6
3Janet Newman. (n.d.). Drug and Alcohol Policies – The Higher the Safety Risk the Greater the Need. Retrieved from FindLaw Australia: http://bit.ly/1lHnveR
