A legal case sheds light on the hazy issue
In a recent case, the Fair Work Commission considered a worker dismissed after refusing to undergo a urine sample for a workplace drug and alcohol screening. The worker asserted that the testing method was “invasive” and that she had the right to opt for an oral swab instead. However, the Commission sided with the worker’s employer, finding that the worker failed to follow a lawful and reasonable direction under her employment contract.
The worker was employed as a salesperson at a Brisbane hardware store. In February 2021, she was randomly selected to undergo a drug and alcohol screening as part of the company’s policy to prevent workplace health and safety risks. The company’s evidence was that urine samples were its chosen screening method, as urine can detect a broader range of substances over a longer window than oral testing.
The worker told the testing technician that she had contracted a urinary tract infection and only consented to an oral test. The technician advised that this was not possible and explained that failure to provide a urine sample would be treated as though the worker tested positive.
Over the next two weeks, the worker exchanged several emails with the company’s management. Despite several warnings that failure to comply may have ramifications “up to and including termination”, the worker maintained that urine testing was invasive, given her medical condition. The company subsequently dismissed the worker.
The worker submitted that her dismissal was unreasonable, given she was not required to operate company vehicles or machinery. She also reiterated that she never refused to provide a sample but opted for a different testing method. The company submitted that it made a lawful and reasonable direction to the worker, which she was required to comply with under her employment contract. It also asserted that, although the worker stated that she had a medical reason, she never disclosed the nature of her condition to the management team.
The Commission found that the company policy did not give workers the right to insist on a particular testing method and took no issue with the fact that the policy applied to all staff regardless of their work duties. Based on the evidence, the Commission opined that the worker held strong views about how the policy should be managed, commenting that those views “crystallised into a general opposition to the urine screening.” It also found that the company set out an “ostensibly valid reason” for dismissing the worker and warned her of the consequences of her refusal on several occasions.
With this, the Commission was satisfied that the worker “knowingly and wilfully defied a lawful direction”, which constituted a valid reason for her dismissal. It dismissed the worker’s claim.
