Today a worker who returns a positive drug and alcohol test faces the risk of losing his or her job. This is not a new phenomenon; over the centuries the law has allowed employers to penalise workers for out-of-hours behaviour they don’t approve of.
A 1777 English court case upheld a master’s right to dismiss a maidservant who became pregnant, and from 1831, the common law recognised that ‘moral misconduct’ (including drunkenness) was a valid ground for the dismissal of a servant.
While drunkenness may no longer be enough to justify termination, many employers now have drug and alcohol policies that include behaviour outside the workplace.
Workplace drug and alcohol testing: what you need to know
Drug and alcohol testing has been introduced into many companies, and in some cases testing is now required by law. The Building Code was amended in 2015 to require principal contractors on large Commonwealth-funded projects to test employees as part of their Fitness for Work policy. Contractors on private or state government projects are not required to implement mandatory testing, but must ensure that drug and alcohol management is reflected in their work health, safety and rehabilitation management system
Testing involves intrusion into the private lives of workers and has been a controversial issue in some workplaces.
Undeniably, testing does involve intrusion into the private lives of workers and has been a controversial issue in some workplaces. But where safety is an issue, the Fair Work Commission has consistently endorsed it.
In the 2008 case of Shell Refining (Australia) Pty Ltd v CFMEU, the Fair Work Commission noted that “employees should not have to suffer the intrusion into their privacy involved in random testing unless there is a good safety reason for doing so.” However, it also acknowledged that “the employer has a legitimate right (and indeed obligation) to try and eliminate the risk that employees might come to work impaired by drugs or alcohol such that they could pose a risk to health or safety.”
What’s the future of testing?
Given that the statistics indicate about 35 per cent of Australians have tried cannabis, and between 7-10 per cent of the population have used ecstasy, hallucinogens, cocaine or methamphetamines, should drug and alcohol testing be expanded to other industries?
The ability of employers to implement such a policy has not been fully explored in the courts. However, the basic principle is that an employer may have a valid reason to enquire into an employee’s out-of-hours activity if it is likely to affect the workplace.
The employer could have reasonable grounds for testing where drug use is incompatible with the employee’s ability to perform their duties. For example, recreational illicit drug use would obviously be incompatible with the duties of a police officer or a Customs official, whose role involves enforcing the legal prohibitions on those substances.
In manufacturing and construction industries, the link between drug taking and the safety implications for the workplace is clear, but the line is much murkier for white-collar office jobs or industries where safety risks are low. In those workplaces, drug testing may only be reasonable where an employee’s capacity is clearly impaired.
Elizabeth Ticehurst is Special Counsel – Employment at KPMG.