Employers wanting to randomly test for drugs and alcohol as part of their Occupational Health and Safety Policy may be unaware of the legal and practical issues that can arise. Below, we set these out from both the employee and employer perspective.
Workplace Drug Testing From an Employee Perspective
An employee (or prospective employees) may not find out that a particular employer uses workplace drug testing until after they are offered a job.
At that point, the employer will likely hand the new employee and employment agreement and staff handbook to read over, sign and return ‘as soon as possible’. The employment agreement (if properly drafted) will state that the employee agrees to be bound by all staff policies as amended from time to time. Within the employee handbook, the candidate may find a reference to WDT as being applied at the discretion of the employer.
At that point, the employee faces a dilemma – any questions the employee asks regarding the employer’s use of WDT could give the impression that the candidate is a drug user. And a failure to inquire as to the nature of the WDT program may deprive the candidate of important details that may affect his/her employment at a later stage.
For this reason, it’s important that the law places checks and balances on WDT and thankfully it does. An employer who adopts a WDT program does not mean it is acting fairly or reasonably by relying on it to justify decisions which affect employees.
So, if an employer fires an employee for failing a WDT, would that employee succeed in an ‘unfair dismissal’ proceeding under the Fair Work Act 2009 (Cth)? In determining any such application, Fair Work Australia will need to consider whether the dismissal was “harsh, unjust or unreasonable”. We need to look at why an employer would use a WDT program to assess whether it’s ‘harsh, unjust or unreasonable’.
Why do Employers Use Workplace Drug Testing?
Employers Australia-wide are required to provide a safe working environment for their employees. As drug use can create an unsafe workspace, employers should consider addressing this in their staff policies.
However, case law has held that it’s not the employer’s role to involve themselves in law enforcement or supervision over their employee’s private lives. Accordingly, a business must justify any WDT program on proper grounds, for example:
- Integrity of the workplace;
- Workplace Health and Safety; and
Case law has upheld the first two grounds as being fair and reasonable for prison workers (which would logically extend to law enforcement officers) and in industries responsible for public safety (such as aviation, transport and maritime services). Employees and employers in the latter industries may be subject to State-based legislation (such as the Rail Safety Regulations 2006 (Vic)) which mandate compliance with drug and alcohol testing.
If you are an employee and have any questions about your rights at work or if you are an employer and need assistance drafting your staff handbook, get in touch with our employment lawyers on 1300 544 755.
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