Employee dismissed for evading a D&A test

By Catherine Ngo Content writer, presenter and podcaster

A forklift driver was summarily dismissed from their job due to allegations of evading a mandatory drug and alcohol test. The driver claimed he urgently needed to go home as he had involuntarily defecated in his pants. Consequently, the former employee filed a complaint with the Fair Work Commission (FWC), seeking remedy for what he believed to be unfair dismissal.

Background

Food manufacturing and distribution company Scalzo Trading had issued the forklift operator a final warning when he returned a positive drug test reading in March 2024. The warning advised that further breaches of its drug and alcohol policy would not be tolerated. 

The company's drug and alcohol policy stated that if an employee attempts to avoid a drug test, this will be treated as a breach of the policy and disciplinary action will follow. Furthermore, the policy states that an employee may be summarily dismissed for a second offence against the policy. 

Months later, in May 2024, a shift manager requested he take a drug and alcohol test. At the time, the employee was operating a forklift, and upon the request, the employee abruptly said words to the effect of "I've got to go. I just shat myself" and left the site immediately. 

Following an investigation, the company determined that the employee had abandoned their job to evade a drug test, leading to their immediate dismissal. In response to his termination, the employee claimed that it was unjust and that he did not intentionally avoid the second drug test but rushed home after an involuntary bowel movement.

However, the company believed that the employee deliberately evaded the test. In their view, this behaviour constituted serious misconduct, prompting the company to maintain that the dismissal was justified.

Employee claimed he was 'targeted' by the company

The employee argued that he felt unwell in the morning; however, he attended work and persisted through his shift until he experienced the embarrassing "accident." The employee alleged that the supervisor approached him aggressively to start the drug test, prompting him to leave and go home. The employee subsequently obtained a medical certificate indicating that he was deemed "unfit for work" on 6 and 7 May 2024.

The employee alleged that the company's human resources department had singled him out for numerous drug tests while other employees were not subjected to the same level of scrutiny. The supervisor informed the employee that he had been chosen for a drug test and warned him that declining to take the test would reflect poorly on him. However, the employee expressed his unwillingness to undergo the test in his current state.

The company was convinced the employee deliberately avoided the drug test. He did not have to leave the site to resolve his accident, and they stated he could have cleaned himself up in the bathroom or gone home first to clean himself and then returned to the site. Further, the company also attempted to contact the employee once he left the site, but he was unresponsive. The employee claimed his phone was not working.

The employee did not have to leave the site

In his decision, FWC deputy president Alan Colman, who oversaw the case, said, "I accept, with some hesitation, that the employee had an accident in his trousers on 6 May 2024. But I do not accept that this compelled him to leave work or that it was the main reason that he left work."

"He had other reasonable options open to him. He could have gone to the bathroom to clean up. He could have done the drug test and then gone home. He may not have wanted to do that. But his job was at risk: he was on a final warning for breaching the drug and alcohol policy."

Coleman emphasised that the employee did not propose an alternative time or location for the drug test, demonstrating a disregard for the company's policy. Furthermore, Coleman dismissed the medical certificate as it lacked any indication of a medical emergency that would warrant leaving the workplace.

"Nothing can be more important than protecting health and safety in the workplace, and a drug and alcohol policy is one important means of doing so. Failure to comply with a reasonable workplace drug and alcohol policy is unacceptable, first and foremost because it undermines efforts to keep workers safe, and secondly because it exposes the employer to risk." Coleman said.

"What would have happened if the employee had responded tepidly with a second, now hollow, warning, and the employee had later injured a worker while driving his forklift with a positive drug reading? The company could reasonably have been accused of not putting safety first and of not taking all reasonable measures to protect health and safety by enforcing the terms of its drug and alcohol policy."

After considering all the evidence, Coleman concluded the dismissal was not harsh, unjust, or unreasonable and, therefore, not unfair. He subsequently dismissed the application.