Kicked off site for a drug test? Read this

The mining industry has one of the most stringent drug and alcohol testing regimes, but many of these practices fail to adhere to Australian Standards. This can have serious implications for workers, leading to unfair dismissals and loss of employment.

Here’s how these practices may be legally problematic and what you can do if you’ve been unfairly dismissed.

Common Testing Practices and Legal Issues

1. Urine Testing and Legal Precedents

Typically, employers in the mining industry use urine tests as the first step in their drug testing process. However, Federal Court rulings, including Harbour City Ferries v Toms [2014] FWCFB 6249 and Goodsell v Sydney Trains [2023] FWC 3209, have established that urine tests are not indicative of impairment. This means that penalising a worker based on a not-negative urine test result is likely unlawful.

2. Cross-Matrix Testing Concerns

Employers often follow a urine test with an oral fluid test if the first test is not-negative. This practice, known as cross-matrix testing, has been deemed unreasonable in cases like Shannon Green v Lincon Logistics Pty Ltd T/A Lincon Hire & Sales [2017] FWC 4916. Although this case involved a shift from urine to blood testing, the principle remains that inconsistent testing methods can be legally challenged.

3. Non-Compliance with Australian Standards

Australian Standards, specifically AS/NZS 4760 (oral fluid testing) and AS/NZS 4308 (urine testing), require that any not-negative result should be confirmed through laboratory testing. However, many mine sites fail to follow this procedure, leading to dismissals that may be legally questionable. Additionally, outdated qualifications of the test collectors further complicate the validity of these tests. (basically anyone doing an oral fluid test needs to have been trained from 2020 onwards, anyone doing urine testing must renew their qualifications by 2027).

What to Do If You’ve Been Dismissed

If you’ve been dismissed based on a drug or alcohol test that wasn’t sent to a laboratory for confirmation, there’s a strong chance the test was non-compliant with Australian Standards. This could make your dismissal harsh, unjust, or unfair.

Act Quickly

It’s crucial to consult a solicitor who specialises in employment law as soon as possible after your dismissal. The window to commence legal proceedings is short, and acting quickly could make all the difference in protecting your rights.