Yesterday a client in the aviation sector contacted us seeking advice on drug testing and the affect of Goodsell v Sydney Trains [2023] FWC 3209 on their drug testing regime.
Now, in short, the matter of Goodsell and Sydney Trains is the latest caselaw to determine that workplace testing for drugs via urine is not a reasonable indicator of impairment (as urine testing covers approximately a week of someones life and drugs will only impair someone for a matter of hours).
The three most significant Full Bench authorities on workplace drug and alcohol testing are Harbour City Ferries v Toms [2014] FWCFB 6249, Sharp v BCS Infrastructure [2015] FWCFB 1033, and Sydney Trains v Hilder [2020] FWCFB 1373.
In the matter of Toms, the Bench was not persuaded that urine testing in accordance the Australian Standard is a guide as to the actual presence of marijuana in an employee’s system or any impairment arising as a consequence.
In the matter of Goodsell, it was affirmed by the commission at [102] that:
The taking of drugs by an employee away from work is only relevant to the employment if it has a connection to the performance of work. As was observed in Rose v Telstra Rose, Print Q9292 [1998] AIRC 1592: “… employers do not have an unfettered right to sit in judgment on the out of work behaviour of their employees. An employee is entitled to a private life. The circumstances in which an employee may be validly terminated because of their conduct outside work are limited...”
This case joins the long list of cases that have affirmed that a decision to fire an employee based off of a urine test indicating the use of drugs is unjust, harsh, or unreasonable. It has been the conclusion of State Government (i.e. NSW Industrial Relations Commission) and Federal Government (i.e. Fair Work Commission) that firing people based on the results of a hair test or urine test is unlawful.
Your employer may test your urine in accordance with a drug and alcohol policy and failing to co-operate will likely be a crime (failing to meet your duties under the WHS Act) but if that employer terminates you with no proof you were impaired whilst at work or otherwise posed a risk to health, safety, or reputability of the workplace - the decision is unlawful.
In short - an employer can test your urine, but they generally cannot fire you if you fail a urine test.
This is why we have always encouraged oral fluid testing for workplaces rather than urine. If you have any questions, feel free to call WHS Guardian on 1300 183 984.
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