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Employer unfairly used drug policy to dismiss worker, judge rules

In Oliver v Return to Work South Australia and Bradley Painting Pty Ltd (2019), the South Australian Employment Tribunal (SAET) ruled that a worker’s refusal to undergo a drug test was not serious misconduct.

The worker had been off work for about 3 months for a re-aggravated lower back injury and was receiving income maintenance payments.

During this time, the employer made a number of unsuccessful attempts to contact the worker by telephone.

One of the company’s directors eventually visited the worker’s home and placed a letter under his door directing him to attend a meeting about an “employment-related matter”.

Part of the letter read:

"Please be aware at this meeting you will not be completing any works. This meeting is to discuss another employment related matter that has been brought to our attention.
"Your attendance at this meeting is compulsory and failure to attend could result in disciplinary action."

When the worker attended the meeting, he was immediately issued with a warning relating to one director allegedly seeing him fixing the fence at his house, lifting a fence panel over his head. The worker’s medical certificate stated he could not lift more than 10kg.

The directors then accused the worker of being a “drug addict” and ordered that he take a drug test. They had organised a drug-testing van to attend the premises.

The worker became angry and allegedly swore at the directors, loudly saying to them either “you’re f—ed” or “this is f—ed” as he stormed out of the meeting room and left.

The employer subsequently dismissed the worker for serious and wilful misconduct, which resulted in his income support payments from ReturnToWork SA being discontinued.

Cutting payments can have ‘disastrous consequences’

In August last year, the worker applied for a review of ReturnToWork SA’s decision in the SAET.

The SAET suspended the discontinuation of the worker’s income support payments, pending the outcome of the following hearing.

SAET Deputy President Judge Brian Gilchrist said “The cessation of weekly payments can have disastrous consequences for a worker and his or her family”.

“If the determination to discontinue turns out to be incorrect, the later reinstatement of weekly payments, even with interest, might not adequately redress the consequences of the discontinuance.”

Drug and alcohol policy was not good enough

In the SAET hearing last month, Deputy President Judge Leonie Farrell found that the worker’s behaviour in the meeting did not justify his dismissal “given the overall context of the meeting”.

However, the employer maintained that the worker was dismissed mainly because he refused to undergo drug and alcohol screening.

This contention was flawed for a number of reasons.

  1. The employer could not prove that the worker knew about its drug and alcohol policy.
  2. The policy was “too wide” in that management were permitted to order workers to “undertake drug or alcohol testing that reached beyond the proper scope of such a policy for the kind of employment that [the worker] was engaged in”.
  3. The policy failed to “specify the methods of drug testing proposed, nor whether an initial screening will be accepted as finally conclusive or if formal confirmatory lab testing would be ordered in the case of a non-negative result”.
  4. The policy permitted the employer “to test in circumstances that exceed the maintenance of a safe work environment” and was “so expansive that an employee who had drunk a glass of wine or beer after work or taken Panadol could be caught by it”.
  5. The policy granted the employer power to test a worker based on a “mere suspicion”. This did not have to be “reasonably founded”, which allowed “too broad a discretion on the part of the employer”.
  6. The employer’s right under the enterprise agreement and its own policy only applied when “the employee either is or will be undertaking (the hazardous) employment duties within the time frames in which that testing might return a positive result”.

Employer’s actions were not ‘reasonable or lawful’

Deputy President Judge Farrell found it unacceptable that the employer directed the worker to attend a meeting and take a random drug test while he was still on leave and unfit to return to work.

“Where an employee is neither at work nor due to commence work, a direction to submit to drug and alcohol screening would be outside of the scope of that employee’s duties and a refusal to submit in those circumstances would not be an act of misconduct,” Deputy President Judge Farrell said.

Further, she noted that the employer had intended to ‘stand down’ the worker without pay if he failed the drug test, which it has no right to do under common law.

Deputy President Judge Farrell also took issue with the arrangement of the meeting.

“[The employer] failed to provide sufficient information for [the worker] to give him the opportunity to answer the allegation against him, seek support in doing so, or even know the full nature of the direction being given in the letter,” she said.

“I find that the direction as issued by the employer had the primary effect that [the worker] attend, under threat of disciplinary action, a meeting unreasonably.

“The employer attempted to order [the worker] to undergo drug testing during a period in which [the worker] was not expected to be working and it was known that he had been taking anti-depressant medication and opioid painkillers for his work injury.

“In consideration of these factors, having occurred during a period of continuing leave, I am satisfied that the direction for [the worker] to attend on 6 September 2017 was not reasonable or lawful in the circumstances and carried with it no duty to comply.”

Deputy President Judge Farrell said the worker’s actions “were not serious and wilful misconduct” and although his conduct at the meeting “warranted a reprimand” it did not “breach the mutuality of his employment with the employer”.

In setting aside ReturnToWork’s decision, she said the worker’s conduct didn’t justify discontinuing his compensation payments. Parties were directed to produce submissions on the final orders to be made.

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