As an employer you have an obligation to provide a safe workplace that is free of drugs, alcohol and the impaired judgement and risks that follow. This is a common and complex HR issue. Employers are faced with the challenge to balance their obligation to provide a safe workplace, with the employee’s right to privacy and procedural fairness.
A recent Fair Work Commission (FWC) decision highlights the complexity of this issue. Here’s what happened:
Ensign Australia, a global drilling and energy services provider, immediately dismissed their employee after failing a random drug test. The employee tested positive for methamphetamine, tetrahydrocannabinol and amphetamine.
The employee claimed that he was wrongly terminated as he did not use drugs, the testing was unreliable and he was denied procedural fairness in the testing and disciplinary procedure.
The FWC agreed that the dismissal lacked procedural fairness; however, this was mitigated and overridden by the employer’s obligation to ensure a fair workplace.
Although the employee was not successful in this case, the nature of the workplace was critical to the decision. The result may have been different if the employer didn’t follow correct procedure in a less dangerous working environment.
The case confirms that, while privacy considerations and fair testing procedures are important, an employer’s primary obligation is to provide a safe working environment for its employees.
Importance of a policy
Testing of employees for the presence of drugs and alcohol can be a contentious area, that’s why a robust drug and alcohol policy that specifies testing protocols, procedures and agreement on testing methods is critical. Employers should also take steps to ensure that employees are well informed about the policy and testing procedures.
Employees must be treated equally with regards to who is tested and why, whether that be for random testing or for testing as a result of a reasonable suspicion of drug or alcohol use. This should all be clearly stated in the company’s drug and alcohol policy.
Lessons for Employers
1. Have a drug and alcohol policy with clear testing procedures
Your policy should be up to date and include:
- What you are testing for
- How you are going to undertake testing
- Process for dealing with a positive test result
2. Ensure that your employees are aware of the policy content and their obligations
Have some clear evidence of your steps to communicate the policy. Document for example the mix of mediums used to communicate the policy, such as: emails to staff, newsletters, training sessions, videos, handouts, team meetings and signage. You may also consider having a policy acknowledgement form signed by staff to confirm they understand the policy.
3. Your testing program should be justifiable
Do you have a reasonable suspicion of drug use? Is there a substantial safety risk? You must be able to adequately show that as an employer you had to take steps to ensure the safety and well-being of your staff, customers and in some cases the wider community.
4. Instant dismissal is not always the best answer
Your procedure could include other options such as offering sick leave, counselling or rehabilitation services first. Procedural fairness is a huge with these types of rulings. Make sure that your policy is fair and reasonable.
Dealing with drug and alcohol use in the workplace can be stressful and difficult to deal with. If you need some advice or need some help to get your policy and procedures ready, get in-touch with us at firstname.lastname@example.org or check out our policy solutions.
Read the original article written by Christine Broad, Solicitor, BlandsLaw