Drugs and alcohol in the workplace
Employers have a legal duty to ensure, as far as reasonably practicable, the health and safety of their workers while at work. This duty includes managing the risks associated with workers’ use of drugs and alcohol and the resulting impacts on the workplace. Clear, comprehensive policies and procedures are essential for managing these risks and avoiding legal challenges.
Tamati v MQT Pty Ltd [2025] FWC 2607
On 10 April 2025, three employees attended a four-hour lunch at a nearby restaurant. Upon returning to the office, one of them was reported as being disruptive and was asked to take an alcohol breath test. This employee admitted that he had been drinking and resigned.
The employer’s safety manager then suggested testing a second of the three employees in attendance at the lunch. This was agreed to by the National Compliance Manager, who reported that this employee had been ‘acting a bit different’. The HR manager also concurred, stating that the tests should be done ‘for fairness and [the employer’s] duty of care’.
There were differing accounts of what occurred in the conversation with the employee; however, the employee gave evidence that she admitted to having had one alcoholic drink at the lunch. When asked to take a drug and alcohol test, the employee says she initially agreed but asked on what grounds the test was being requested.
There were various justifications claimed as the reason the employee was asked to undertake a test, including that she was at the lunch with the disruptive employee and that she was acting out of character when she returned to the office. Some back and forth ensued, and the employee asked what would happen if she refused the test. The employee was told she would be suspended and, following a formal meeting, she could face termination of employment.
The employee refused the test. She was suspended with pay and told that a formal meeting would follow. At the formal meeting four days later, the employee was summarily dismissed for serious misconduct.
The employer’s drug and alcohol policy required employees to be drug and alcohol free at work, including during meal breaks. It permitted testing based on reasonable suspicion, random checks and post-incident situations. While it required employees to comply with testing requests, it did not specify penalties for refusing a test.
The decision
The Commission considered whether the employee’s dismissal was harsh, unjust or unreasonable.
The employer argued that the dismissal was due to serious misconduct, specifically the employee’s refusal to comply with a lawful direction to take a breath test and a breach of the drug and alcohol policy. However, the Commission found that the direction to take the test was not reasonable and lawful as it was not made in accordance with the policy. The reason for the test was not made clear, and the justification based on the employee’s behaviour after returning from the lunch did not fit within the provisions of the policy.
While the employer’s policy allowed for random checks or testing based on reasonable suspicion, the Commission found that the grounds alleged to have been relied on for requiring the employee to take the test were unclear and inconsistent. The witnesses for the employer could not reach agreement on the ground for ‘reasonable suspicion’.
The Commission found that the employee was entitled to make queries as to the basis for the direction. The policy was not provided to the employee, nor was she directed to any specific provision that entitled the employer to require her to undergo the test.
The Commission found that, in the circumstances, the employee’s refusal was justified.
The policy also failed to specify any penalty or sanction for refusing a test. Therefore, the employer was incorrect to warn that refusal could lead to suspension or dismissal, as this was not stated in the policy.
Further, no investigation was conducted and the allegation of serious misconduct was not put to the employee.
In these circumstances, the Commission found that the direction to take the test was not reasonable, and the decision to dismiss the employee was not sound, defensible or well founded.
Ultimately, the Commission ruled the dismissal was harsh, unjust and unreasonable. Reinstatement was deemed unsuitable due to the breakdown of the employment relationship, so the employee was awarded $63,500 in compensation.
Key takeaways for employers
- Draft clear policies specific to your workplace – clearly outline when and how testing will occur, in what circumstances the employer can test and the consequences of refusal. Ensure the policy complies with relevant laws and modern Awards.
- Ensure testing strictly follows established protocols – to avoid claims of unfair treatment, apply testing consistently and fairly, provide clear reasons for testing (including a clear right to require the test) provide a copy of the policy and document all steps.
- Ensure procedural fairness when investigating allegations – communicate openly with employees about the process, give them an opportunity to respond and base decisions on this evidence rather than on assumptions. Respect employee privacy throughout by handling testing and related investigations sensitively.
- Regularly review and update policies – check your policies to ensure they are clear, comprehensive and up to date with legislative changes, workplace needs and best practice standards. Act promptly to address any gaps.
If you have any questions regarding the issues mentioned in this article or would like assistance drafting your business’ drug and alcohol policy, please contact our workplace relations and safety team.
