Drug Testing in the Workplace

Drug testing is becoming increasingly more common in the Australian workplace, particularly in high-risk industries and after workplace accidents. Statistics amply demonstrate that employees who are under the influence of drugs display poor judgment and slow reflexes, causing potentially life-threatening results. It is therefore vital to regularly test employees in high-risk industries (such as aviation, transport, agriculture, construction and corrections) for drug and alcohol use. This article looks at the legality of drug testing in the workplace.

Drug and alcohol workplace policy

In Australia, it is legal for an employer to conduct drug testing in the workplace. As a general rule, employers can impose drug and alcohol screening on their workforce as long as it is reasonable and justifiable. For instance, it is an acceptable reason if there is a health and safety concern or to improve productivity in the workplace, or to adhere to the standards of the company’s drug and alcohol policy. However, employers must have a stringent drug and alcohol policy in place to establish a standard and to minimise the potential for discrimination or abuse of the process.  

A workplace Drug and Alcohol Policy should clearly define acceptable practice regarding employee use of alcohol and drugs. The written policy should establish the tolerance levels for alcohol consumption and limitation criteria for illicit substances and even prescription and over-the-counter medication. The policy must also clearly set out, in understandable language, the consequences for infringing these standards. Additionally, workplace drug policies should communicate:

• the type or method of testing
• when a drug test can take place or the employer can request a test
• the proceedings and consequences following a positive test result

It is particularly important that employers actually follow the procedures set out in these policies. There have been several Fair Work Commission (FWC) cases where employees have won unfair dismissal appeals because their employers had poor drug and alcohol policies, or did not comply with their own written procedures.

Can an employee decline a drug test?

An employee can legally refuse to participate in drug and alcohol testing. However, a worker is likely to face disciplinary action and can even be summarily dismissed for refusing to comply with a lawful and reasonable workplace direction.

The FWC recently ruled on the issue of drug testing in the workplace in an unfair dismissal case. In Stacey v Mondelez Australia Pty Ltd [2024], the FWC emphasised that if an employee fails to comply with workplace policies, this is not only grounds for dismissal, but can also be a valid reason to warrant summary dismissal. In this case, the employee was summarily dismissed by Mondelez Australia Pty Ltd for refusing to undergo drug and alcohol testing as required by his employer’s Drug and Alcohol Safe Workplace Policy.

This policy clearly established that there was zero-tolerance for drugs and alcohol in the workplace. The employee worked in a manufacturing area of the business as a confectioner. On 12 October 2023, the worker was randomly selected to participate in a drug and alcohol test. The employee admitted to smoking marijuana the previous night, informed his supervisor that he would not take the test and left the workplace. The supervisor replied ‘OK’ which the employee interpreted as approval to leave without submitting to the test. However, the employer later sent an email informing the employee he was suspended with pay pending a workplace investigation.

On 24 October 2023, the employer sent the worker a show cause letter telling him that his actions constituted serious misconduct. The employee argued that he had no previous disciplinary history, he was trying to reform his behaviour, was willing to enter a drug and alcohol program, and there were mitigating circumstances of ill health in his family. Additionally, he claimed that he only left the workplace because he panicked. The employer asked him to attend two disciplinary meetings, but he failed to attend either and was notified of his dismissal on 1 December 2023.

In his unfair dismissal application to the FWC, the employee claimed that his employer should have better explained the consequences of not taking the test. The employer disagreed on the basis that the employee decided to leave of his own accord, and there was no opportunity to have a discussion with him. The FWC dismissed the employee’s argument and determined that the employee was obliged to comply with the test as a reasonable condition of employment. The FWC was satisfied that the employee was on drugs while at work in breach of the workplace policy and was therefore risking the health and safety of himself and others. However, it was the employee’s refusal to comply with taking the test that was a failure to follow reasonable direction and therefore serious misconduct warranting summary dismissal. The employee’s application was rejected.

The FWC’s decision confirms that an employee can be summarily dismissed for refusing to comply with workplace policies, particularly when it comes to the use of drugs and alcohol in zero-tolerance workplaces. Go To Court Lawyers can provide advice about drug testing in the workplace, or any other employment law matter. Please call 1300 636 846 today for assistance.