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Employee refuses drug test and wins unfair dismissal claim

The FWC awarded an employee $28,000 in compensation after the employee was dismissed for refusing to take a drug test.

The Employee was a pathology collector who, among other things took samples for drug testing purposes.  In March 2016, the Employer received a phone call from a person who said the Employee had been using drugs, among other allegations.

The following day, the Employee received a call from her manager asking her to attend a meeting.  At that meeting, the Employee was asked to take a urine drug test.

The Employee ““became agitated and left the meeting. The Employee ultimately got in her car and left without providing a urine sample.  The HR Manager tried to call the Employee and tell her return to work. The Employee eventually communicated with her manager and said she would return but then subsequently advised that she had obtained a medical certificate and would not be returning.

About two weeks’ later, the Employee attended another meeting and she was asked why she had not returned to work after she had been directed to do so. The Employee apologised and said she was willing to take the drug test. Following a break in the meeting, the Employee was told she was being terminated for failing to follow a lawful direction.

During the hearing, the Employee’s manager gave evidence that the termination was as a result of the refusal to follow the lawful direction to return to the meeting, whilst the CEO gave evidence that it was related to her refusal to take a drug test.  The CEO clearly understood that the refusal occurred at the second meeting rather than the first meeting.

The Commissioner noted that where the Employee had a medical certificate, the lawful direction to return to the meeting could not constitute a valid reason for dismissal.  The Commissioner also found that the refusal to take a drug test did not constitute a valid reason for dismissal, where the employee subsequently gave consent to the drug test.  The Commissioner was then critical of the lack of procedural fairness afforded to the employee.  Consequently the Employee was successful in her claim and was awarded compensation.

Lisa Aitken is an Accredited Specialist in Workplace Relations Law and the Managing Partner of Aitken Legal, a law firm specialising in employment law for employers.www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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