As a business owner, you have an obligation to ensure a safe workplace. Part of ensuring the safety of your workforce and having faith that the duties undertaken by your staff are done so free from any impairment, with the utmost care and attention, necessitates the formulation of not only general workplace health and safety guidelines, but also a clear and understandable Alcohol and Drugs policy.
It is easy to foresee the dire consequences that could arise from an impaired staff member being present in your business. Repairs not being conducted correctly, equipment being operated not in accordance with accepted standards, documents not properly executed, and even simple behavioural and attitude changes, all have the potential to lead to terrible outcomes, be they physical, financial, reputational, or a combination.
Cases have recently been brought in front of the Fair Work Commission, where employees have argued their dismissals have been harsh, unjust or unreasonable, where it has been brought about due to breaching drug and alcohol policies.
When creating a drug and alcohol policy, it is crucial that the policy is worded in such a way that it is easily understood by all it applies to. It should also include:
- Why the policy is being put in place.
- A risk assessment which identifies internal and external potential risk events.
- Provide information on intervention strategies and where to seek help.
- Outline how the policy is to be communicated to employees and ensure its understanding.
- Clearly define what level, if any, is deemed acceptable when it comes to the consumption of alcohol and/or illicit substances.
- Where staff are required to take medication that has the potential to impact their duties, who they need to inform.
- Detail the manner in which to raise with the employer concerns about someone being impacted by drugs or alcohol.
- Outline the testing approaches that will be undertaken, ie random, periodic, pre-employment screening, after incident, breath, urine, saliva etc
- Privacy issues surrounding the results of testing and record keeping.
- What a positive test result means.
- What the consequences are for those found to be under the influence of drugs or alcohol.
- The outcome of refusal to provide a specimen.
- Procedures for appealing the outcome of a test or decision.
- Company events where alcohol is provided.
- How the effectiveness of the policy will be monitored.
The above is not an exhaustive list and rarely is there a one size fits all approach when it comes to what an effective drug and alcohol policy looks like. The main goal however is to be very clear about what is and is not accepted, and what the potential outcomes could be when it comes to a test returning positive.
Employers need to be aware that whilst they may feel that it is just to terminate am employee who fails a drug test, the employees history of service, the reasoning they provide and the circumstances surrounding the test, may provide that a termination, whilst justifiable, is harsh or unfair, given all the circumstances.
Two cases of note have been before the FWC that highlight the need for drug and alcohol policies to be clear and reasonable.
Case One
In this case, a Train Driver returned from a weeks leave and returned a positive drug test. Employed for over 26 years, they had never failed a previous test and otherwise had a very positive employment history. Deeply apologetic, they admitted to accepting a drug from a friend 4 days before returning to work, which upon further testing, only had a 90 minute half-life, meaning that 4 days later, though testing positive for a substance, they were neither intoxicated or impaired.
Despite their strong employment history, the decision was made to terminate their employment. This was deemed to be harsh in light of all the circumstances and also due to the organisation not complying fully with its own drug and alcohol policy, nor making a suitable effort to explain to its employees what the policy meant in terms of being “drug-free”. The disciplinary process also did not afford appropriate procedural fairness, in that no consideration was given to remedies, other than termination.
Case Two
An employee was selected for a random drug test, which recorded a negative result. The sample was sent for further testing, which returned a positive result. This was the third time the employee had returned a positive test. Interestingly, all on-site tests were negative, but further testing detected the presence of illicit substances.
Following the first positive result the employee was issued a warning and was placed on routine testing over a 12 month period.
Around a week later a second test was conducted. Subsequent testing returned a positive result, though the initial on-site test was negative. They were then issued a 2nd and final warning.
Almost one year later, history repeated itself. This time a show cause notice was issued and following additional discussions, their position was terminated.
The employee claimed that the dismissal was harsh, unjust or unreasonable on a number of different grounds. Without going into great detail on each element the employee relied upon in their claim, their arguments were essentially:
- That the employer did not follow their own drug and alcohol policy, in that they had to provide three warnings, before a show cause notice. Only two were provided, with the show cause notice being the third “warning”.
- That the employer was not entitled to send a negative result away for further testing, as the companies policy was only to send “non-negative” results in for confirmation testing, and to test a maximum of 10% of negative samples to confirm testing accuracy. The companies policies were not sufficiently clear to outline what would happen if a negative sample later returned a positive result.
Notwithstanding that the company had not complied with their drug and alcohol policy, the employee was found to be validly terminated.
What the above two cases demonstrate is that there is a great need for certainty within drug and alcohol policies. On the one hand, there was a policy that was quite vague, on the other hand there was a policy that was very detailed and supported by other company policies and commitment to best practice and safety.
They say the devil is in the details, but that is a two way street and can potentially work for either party. It is impossible to cater for 100% of eventualities, 100% of the time. But care must be taken to ensure that any drug and alcohol policy employers intend to rely on is clear, well-documented, understood and communicated to all that fall under the policy.
