Can you refuse to supply sample for drug test?

Cases

Can you refuse to supply sample for drug test?

A worker’s dispute about providing a further urine sample for a drug and alcohol test at work has been determined in the employer’s favour. The worker did not have the right to refuse to give a sample.

A worker’s dispute about providing a further urine sample for a drug and alcohol test at work has been determined in the employer’s favour. The worker did not have the right to refuse to give a sample.

Refused to provide third sample


A worker at a coal mine was randomly selected for a drug and alcohol test at the beginning of his shift in February 2016. The paramedic who conducted the test at the employer’s health clinic found that the urine sample was hotter than expected. The sample strip did not record the temperature, and the tester said it must have been because it was more than 38 degrees. There was no obvious reason for it. The worker’s ear temperature was 36.4 degrees.

After the sample had cooled down and registered 38 degrees, the tester conducted a drug test on it, but he could not get a reading. Testing this sample was against the employer’s drug and alcohol procedure –it should have been discarded because of its high temperature. 

The worker was then asked to give a second sample. The tester asked if he had any symptoms that could increase his urine temperature, but he did not. The second sample was 34 degrees but looked similar to the first, being quite turbid and cloudy. It was also tested for drugs but was negative.

The tester was suspicious that the urine samples had been given by someone other than the worker. He contacted one of the managers and expressed his concern. The manager told the worker that he needed to give a third urine sample. He agreed at first but then became agitated and argumentative, and in the end refused.

He knew that refusing would be considered a breach of the employer’s drug and alcohol procedure. The worker was stood down and did not return to work until 29 April 2016.

On 30 June 2016, the worker was issued with a final written warning because of his refusal to provide the third urine sample.

He applied to the Fair Work Commission asking it to deal with his dispute about the final warning according to the employer’s enterprise agreement and s739 of the Fair Work Act 2009.

Reasonable to undergo further test ‘for cause’


Commissioner Saunders was satisfied the employer had a reasonable basis to ask the worker to undergo a further drug test ‘for cause’.

Because of the suspicion the urine sample had come from someone else, the employer had reason to suspect the worker was influenced by drugs. As the testing was designed to dissuade workers from attending the mine while under the influence of drugs or alcohol – in order to protect those at the mine from the risk posed by such people – the employer was entitled to ask for a further sample ‘for cause’. This was regardless of any previous testing the worker had undergone the same day.

Failure to follow correct testing procedure


Commissioner Saunders confirmed that the tester had failed to follow the correct procedures for the first two urine samples. Nevertheless, that did not give the worker the right to refuse further testing.

The tester should have recorded the abnormal temperature of the first sample and should have completed a test form for each sample. He should not have tried to test the first sample for drugs. He should have completed a chain of custody form in respect of each of the samples before the worker left the clinic and should not have completed one form for the two samples. 

Commissioner Saunders confirmed that the employer had the right to test and retain the worker’s DNA. The commissioner also established that it had not been unreasonable for the employer to issue a final written warning on the basis the worker had breached the drug and alcohol policy by his refusal to give a further sample.

Had worker used his son’s urine?


It was also alleged the worker had told the employer’s general manager that he had a ‘joint’ the day before the drug and alcohol test in February. Because he had been worried he would be caught, he had used his son’s urine during the testing. The worker denied it before the Fair Work Commission, and his son denied having supplied his urine for the test. However,  the commissioner found the general manager to be a reliable and credible witness and preferred his evidence.

Commissioner settles dispute


Commissioner Saunders concluded that the worker had breached the drug and alcohol procedure by refusing to undertake the third urine test in February 2016. It had not been unreasonable for the employer to issue the final written warning to the worker; it had not been unreasonable to conduct further testing of the worker, namely on 29 April and 1 August 2016; and those tests had been conducted according to the employer’s procedure. 

The Fair Work Commission dismissed the application.

M v Mt Arthur Coal Pty Ltd Limited, t/a Mt Arthur Coal [2017] FWC 589 (9 February 2017)
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