THE Fair Work Commission has upheld the decision of Mt Arthur Coal to issue a final warning to an employee who refused to provide a third drug and alcohol test sample, and also backed the employer’s right to retain and test the employee’s DNA.

The case tests the parameters a company has to challenge the validity of samples through further testing and supports employers taking steps to use DNA testing to ensure urine samples are genuine and not from other people or animals.


Background

In February last year, the employee participated in a random drug and alcohol test in which the sample provided was deemed to be higher than the allowable temperature range.

Given the man’s body temperature was 36.4 degrees and the sample provided was 38 degrees, he was directed to provide a second sample the same night.

The employee provided the second sample and it was found to be the same temperature as the first and clear of drugs, but the tester gave evidence he did not hear the flow of urine into the cup and thought the contents were adulterated.

A few hours later a third urine sample was sought ‘for cause’. The man was escorted back to the clinic but became annoyed when he reached for his bag and was told he was not allowed to touch it.

He asked to go outside for a cigarette and became agitated when this was not permitted and refused to provide the third sample.

A witness stated the man had said he understood employees were only required to undertake two tests and called for a union representative.

“I have provided you with two samples and I have signed your chain of custody. There is no requirement that I provide a third sample and I’m not going to,” the man said.

The man was stood down for refusing to undertake a third sample the same night and did not return to work until April last year.

He was issued a final warning after a company investigation including DNA testing of the third sample taken three months later revealed if was from a different person to the first sample, and that this breached the drug and alcohol policy.

The man applied to the FWC concerning his final written warning after attempts to conciliate the dispute were unsuccessful.

Commissioner Tony Saunders heard the arbitration which was centred on:

• whether the man had breached the company’s drug and alcohol procedure by initially refusing the third drug test;
• whether it was unreasonable for the man to receive a final written warning and require him to meet with the mine’s Employee Assistance Program provider; and,
• whether the drug testing had been reasonable and or in accordance with the mine’s policies and procedures.

It was determined the drug and alcohol testing was not unreasonable and met Mt Arthur’s policies and procedures.


Man smoked a joint and swapped sample with son’s urine:

Commissioner Saunders accepted the claim from Mt Arthur Coal’s general manager that the man admitted to supplying his son’s urine because he had smoked a joint the day prior.

Commissioner Saunders rejected the worker’s argument that the employer didn’t have the right to ask him for a third sample, finding nothing in its policies and procedures stopped it from conducting a ‘for cause’ test if it believed a person was under the influence of drugs.

He said the right to require workers to undergo drug and alcohol testing at any time supported the policy’s purpose of dissuading workers from attending the mine while under the influence of substances, and of protecting other workers.

He also found that while the tester failed to follow proper testing procedures for the first two samples – by allowing the worker to leave the clinic before completing the ‘chain of custody’ forms – this didn’t give the worker the right to not undergo the ‘for cause’ test.

Commissioner Saunders found the employer was entitled to treat the worker ‘as though he had recorded a confirmed positive result’, and rejected the worker’s claim that the employer unreasonably requested he meet with a psychologist through its EAP provider.

He upheld the general manager’s claim about the worker’s admission, and found the final warning was reasonable.


Consent forms extend to DNA tests

The Commission heard that an April 2016 DNA test of a new urine sample provided by the worker showed the new sample didn’t match his February samples.

It rejected the worker’s claim that Mt Arthur did not have the right to retain and test his DNA because it was only permitted to test for drugs specified in a consent form.

Commissioner Saunders found the worker’s contention would mean that employers wouldn’t be able to take steps detect if workers were providing urine from other people or animals.

He found the ‘confirmation testing’ and ‘subsequent analysis’ workers consented to at the commencement of the testing process were broad enough to include DNA testing and analyses.

Karl Muller v Mt Arthur Coal Pty Limited T/A Mt Arthur Coal (C2016/1813) 9 February 2017


Implications for employers

This decision upholds a number of important employer rights when it comes to drug and alcohol testing and the subsequent management of suspicious samples, including:

• It confirms that employers can ask for a third urine sample if not in breach of the workplace’s policies and procedures;
• It demonstrates that even if an employer has made an error in procedure, this does not remove its right to ask for further urine samples;
• The decision also confirms that drug test consent forms related to urine testing may also permit a company to retain and test an employee’s DNA; and
• That the ‘confirmation testing’ and ‘subsequent analysis’ agreements signed by an employee prior to testing means a company can carry out DNA testing and analyses from the samples.

The ruling also confirms it is acceptable for employers to issue a final warning to employees who decline to provide a urine sample for confirmation purposes, even when they have already provided earlier samples for testing, especially when it is suspected that samples have been adulterated.