Drug-test refusal heard by FWC

by Cameron Edmond19 Jun 2013

Having a clear company policy over drug testing in the workplace  is key, as a recent case involving an employee who refused to take one, and was subsequently sacked, shows.

An Australian worker’s filing for unfair dismissal over refusal to take a urine test has been rejected by The Fair Work Commission (FWC).

Raymond Briggs, who began initial employment at AWH in 2011, refused to take  the urine test last year due to his concerns about confusing elements in the drug testing policy of the company.

As outlined in a statement from Michael Sing Lawyers, Briggs stated that the company’s policy said urine testing was done to determine if the employee was under the influence of drugs or alcohol, but this contradicted the Australian Standard 4308 – a guideline for workplace drug testing - which states that urine testing cannot be used to determine if an employee is “fit to work”.

Upon his concerns being ignored, Briggs requested he do a saliva-swab test instead, which he was denied. He was then asked to write a statement, outlining his reasons for refusal.

His statement outlined the same concerns, and he was then terminated. Briggs later took the matter to the FWC.

The FWC ruled that the policy of AWH had been made clear to Briggs. The policy was also lawful, and Brigg’s dismissal was justified.

The decision highlights the controversial topic of urine and saliva testing, and the necessity of employers to clearly outline their drug testing policies.

The primary concern surrounding urine testing is that it may reveal “historic drug use” – displaying evidence of drug and alcohol intake from when the employee was not at work. Not only do some feel this is in violation of their privacy, but it may give results that do not actually affect the workplace, but could still influence employers.

As such, saliva testing – which gives results indicative of more immediate drug-use – has become the standard used by many employers.

In defence of urine testing, the obligation of an employer to ensure a safe workplace at all times may extend to the necessity for all workers to have any drugs or alcohol completely out of their systems.

It is argued that saliva testing would be sufficient, as it would provide a positive result if the drug was likely to still be affecting the mental or physical state of the employee.

To read more on the differences between urine and saliva tests, as well as other information on drug and alcohol testing, click here.


Should AWH have done a saliva test on Briggs? How do you feel about drug and alcohol testing in the workplace?


  • by Bree 21/06/2013 11:51:25 AM

    I think that drug testing is a great idea and more work need to be done on this area to make it easier on employers. There is very little information regarding what should be used and does the tests provide levels? To what levels should result in warnings? Dismissal? Or should it be positive & negative - as discussed in the article. This could result in a huge blow to many industries due to many unskilled workers in transport, agriculture, forestry, farming, fishing etc.. The thing is these industries also have high OH&S statistics. It would help if Health departments, WORKSAFE and FWA could help employers and employees to a fair and reasonable solution.

  • by Sylvest Larsen 5/12/2014 11:19:13 AM


    On 6 November 2014 the Fair Work Commission [2014] FWCFB 7889 sanctioned a rather revolutionary drug testing concept, based on re-screening and cross-screening of drugs in multiple specimens. This is an all new, ground-breaking development, where an initial oral fluid test can be confirmed in urine - and the equivalent of having a rapid (on-site) saliva alcohol screen test confirmed in urine...

    This development is a violation of all scientific principles and drug testing standards in the USA (SAMHSA and DOT), Europe (EWDTS) and Australia (AS 4308 and AS 4760), which are based on the universal principle that all drug testing must be based on a two-step procedure, where an initial (non-negative) screen test must be supported by a confirmatory test (using the same, original specimen but a different, more sophisticated technology).

    Re-screening and cross-screening is not an option, and it is not up to the FWC to violate, alter or set new drug testing standards (and what a great mix - half AS 4760 and half AS 4308 - voilà). It is not their jurisdiction or authority. That is for the international scientific community and Standards Australia to decide.

    However, you cannot blame FWC for being frustrated over Standards Australia, who is still in the process of fixing their flawed oral fluid drug testing standard (AS 4760) from 2006. For more details see “The Good the Bad and the Ugly” (www.drugtesting.org.au), where you will also find the answer to the “urine v oral fluid” question.


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