The Case

Ms Moore was employed by Specialist Diagnostic Services Pty Ltd T/A Dorevitch Pathology (SDS), as a Collections Co-ordinator. SDS provides drug-testing services to employers.

In March 2016, Ms Moore was asked to undergo a drug test after a complaint was received. Ms Moore refused and left the workplace. SDS asked Ms Moore to return to the workplace but she refused. Ms Moore provided a medical certificate to support her absence. Ms Moore later indicated her willingness to take the drug test if it was undertaken in accordance with the Australian and New Zealand standard.

In April 2016, Ms Moore’s employment was terminated and she was advised it was due to her refusal to take the drug test.

Ms Moore commenced unfair dismissal proceedings. Ms Moore argued the reason for her refusal to take the drug test was because she did not agree with the collection procedure as it was not in accordance with the Australian and New Zealand standard in that SDS wanted a colleague to collect the sample.

The Verdict

During the hearing, SDS’s CEO indicated that Ms Moore had been dismissed for failing to take the drug test. Whereas SDS’s HR Officer and Manager indicated it was because she had refused to return to work when she left the meeting.

Commissioner Bissett of the Fair Work Commission (FWC) held the dismissal was “harsh, unjust or unreasonable” on the basis of both reasons.

Commissioner Bissett agreed with Ms Moore that the drug test needed to be undertaken in accordance with the Australian/New Zealand Standard regarding both the collection and chain of custody of the sample. Hence it was held Ms Moore’s initial refusal to undertake the drug test did not provide a valid basis for termination of her employment.

Commissioner Bissett also found the employee’s refusal to return to the workplace after leaving the meeting did not provide a valid basis for dismissal given Ms Moore had provided a medical certificate to support her absence, which had been accepted by SDS.

SDS’s conflicting reasons for the dismissal also affected the procedural fairness provided to Ms Moore. This meant Ms Moore was not clearly notified of the reason for dismissal and hence was not provided with an opportunity to respond.

Commissioner Bissett awarded Ms Moore compensation of $27,900 plus superannuation.

Lessons

Procedural fairness is a vital part of the dismissal process. Employers must clearly put all allegations to an employee and provide them with an opportunity to respond.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.