Dismissal upheld for unreasonable refusal of employer’s lawful urine-sample demand

The Fair Work Commission has endorsed an employer’s stringent random drug testing policy, rejecting a dismissed worker’s argument that she should have been exempted from the “invasive” urine testing technique because she was experiencing a “personal medical condition” at the time she was required to provide a sample.

The salesperson had worked for the hardware business since September 2016 when, in February 2021, she was dismissed for what her employer described as “continued refusal to follow a lawful and reasonable direction” to provide a urine sample for the purpose of a drug and alcohol screening test in accordance with the employer’s Drug and Alcohol Policy (Policy). The employer maintained the worker was given several opportunities to comply with the requirement and was warned multiple times of the potential ramifications for her employment should she fail to comply.

In contrast, the salesperson advanced that she was happy to submit to an oral swab test to confirm that she was fit to perform her duties, as this was a method of testing provided for in the employer’s Policy. The employee argued that she did not breach the Policy and that her refusal to provide a urine sample was reasonable given she informed persons, including the testing officer and her managers, of her reasons for refusing to provide a urine sample, including identifying the nature of her medical condition. Furthermore, the salesperson claimed her employer failed to consider her disclosed medical condition or to have a discussion with her, before deciding to “threaten her employment” and ultimately dismiss her.

The salesperson had raised questions about her employer’s Policy over the course of her employment, querying both the external testing provider and company’s head of marketing and communications in 2019, and meeting with the CEO in 2020, seeking to debate why the business chose to adopt “such an invasive method of testing” when swab testing was relied upon by the police and mining companies, as examples. The salesperson insisted she did not condone employees testing positive in the workplace – and had complied with the employer’s policy in 2018, having provided a urine sample at that time for testing – but expressed her belief that, “the company should adapt to a culture practiced in the building industry to support all employees and offer rehabilitation, especially those who have been loyal and served many years”. During her meeting with the CEO in 2020, the salesperson argued requiring employees to submit to urine testing constituted an “invasion of privacy”.

In considering the salesperson’s arguments in 2020, the CEO consulted with the owner and manager of the company’s testing provider, Drug Detection Au, who convinced him that the company could best meet its duty of care to employees by maintaining its urine testing regime because “swab testing is just a moment in time which cannot detect substance abuse”. When giving evidence before the Commission, the testing provider said that saliva testing is preferred by drug users “owing to the shorter detection window compared to urine” and citing as an example the six-week window for cannabis in urine for a heavy user, while in saliva that is reduced to eight to ten hours. In response, the salesperson expressed her offence at the comment that preferring oral swab testing is a tactic of drug users, adding that a saliva test is also a method that someone would request if they had a urinary tract infection and that females know what it is like to have such a condition.

Despite accepting that the salesperson held “no concern about passing a drug and alcohol test including a urine screening test”, Deputy President Asbury upheld her dismissal, finding the employee “knowingly and wilfully defied a lawful direction to undertake a urine test in circumstances where she was required by her contract of employment to comply with that direction and it was reasonable”.

The Deputy President acknowledged that the employee was entitled to hold personal views about the appropriate method for workplace drug and alcohol testing, and she was entitled to express those views, which she did, and the employer reasonably met with her to discuss her concerns in this regard, “notwithstanding the rudeness of the [salesperson’s] communication about her concerns”. However, the Deputy President noted the employee “was not entitled to insist upon her preferred method of testing in circumstances where she was lawfully required to undertake a test using a testing method chosen by the [employer] pursuant to its right to do so and that requirement was reasonable”.

Deputy President Asbury concluded that although the employee had a reasonable basis to refuse to undertake a urine test on 1 February 2021, she did not have a reasonable basis to continue that refusal after 9 February 2021, when on her own evidence, her medical condition had resolved.

The Deputy President assessed that the employer “made every effort” to give the salesperson opportunity to comply with the direction and undertake the test to remain in employment but the employee “simply decided to stand her ground and defy the direction”. “An employee who defies a lawful direction and who fails to establish that the direction was unreasonable, cannot expect to maintain that defiance in the face of warnings that dismissal will result, and not be dismissed”, she added.

In dismissing the employee’s application for compensation Deputy President Asbury noted the salesperson had issued an “invitation” for her employer to dismiss her in correspondence of 8 February 2021, concluding the employee was “the effective architect of her dismissal and it was not unfair”.

Desmond v Lyndons Pty Ltd T/A Lyndons [2021] FWC 5677 (21 September 2021)