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Introduction

Read the full decision here.

A truckie is sacked for refusing to provide a urine sample and claims the dismissal to be unfair. This is a perfect example of why businesses should have in place policies and said policies are known to all employees.

The applicant in this unfair dismissal matter before the Fair Work Commission worked as a local driver of a heavy rigid vehicle for a freight services company. He was employed from 1 March 2016 until his dismissal on 8 January 2020, where he was dismissed for refusing to submit a urine sample for a drug and alcohol test.

The applicant claiming that the company did not have a good reason to request him to produce a urine sample. He says that he did not refuse to submit a sample but was simply unable to provide one and that he would happily have provided one the following day.

On the other hand, the company contends that it had a legitimate concern, based on the applicant’s erratic behaviour, that he was affected by drugs or alcohol while driving a truck, and that, contrary to company policy, the applicant refused to produce a urine sample over a period of many hours.

Background

The company monitors the location of its truck drivers by GPS. The company’s Victorian compliance manager gave evidence that on 8 January 2020, he was approached by the applicant’s immediate supervisor who said that the applicant was in the wrong location. The applicant was then contacted to ask where he was, to which the applicant’s reply was: “I don’t know how I got here I must have zoned out”.

The applicant explained this to be a joke, stating that he had in fact simply lost his way after his GPS had sent him on a different route.

The company, concerned about the applicant’s fitness to drive a heavy vehicle, had the applicant pull over and wait to be picked up. However, the applicant was close to the depot, and ahead of the applicant’s arrival at the depot, an appointment was booked for him to undergo a drug and alcohol test that afternoon.

Applicant not happy with Drug & Alcohol testing

Upon his arrival at the depot, the applicant was advised that he would be required to undergo testing for drug and alcohol and that the company would drive him to the appointment.

At this point, the applicant became agitated and refused to get out of his truck. For several minutes he banged the steering wheel and said: “You’ve got to be f**king joking”. The applicant eventually agreed to go with the company employee to the medical clinic for the drug and alcohol test, but when he got into company’s car, he refused to put on his seat belt and said: “You’re not a cop, where’s your badge?” the applicant was then advised that Victorian law required him to wear a seatbelt. He then fastened his seatbelt. This behaviour further heightened the company’s concern about the applicant’s fitness to drive.

At the medical clinic

Upon arriving at the clinic, the advice was given that a urine sample would be required. Despite this the applicant went to the toilet, resulting in his inability to provide a sample when requested to do.

The applicant was offered water and he refused on the grounds that he did not know what was in it. He then bought a soft drink but despite waiting some three hours he still claimed to be unable to provide the required sample.

They returned to the depot without the testing being carried out and the applicant was dismissed.

Findings

The Deputy President who heard this matter found that:

  • The company had a reasonable basis to have a concern that the applicant was under the influence of drugs or alcohol and therefore not fit to be driving a truck.
  • The company acted in accordance with its policy by requiring the applicant to undergo a drug and alcohol test, and that the applicant was aware of the policy and that he unreasonably failed to provide a urine sample for the purpose of the test.
  • It was implausible that the applicant was unable to provide a urine sample over a three-hour period. And that he did not take all reasonable measures to enable himself to provide a sample.
  • After three hours, in the car on the way back to the depot, the company employee told the applicant that it was not too late to provide a sample. The applicant did not ask for more time. He did not ask for more drinks. He said he could not provide a sample.

The DP concluding:

“I do not accept this. I find that he refused to undergo a drug and alcohol test by providing a urine sample. In any event, even if [the applicant] had not been able to provide a sample after three hours, he clearly did not make reasonable efforts to fix the problem. He did not have enough to drink”.

DP’s “comfortable” satisfaction

The DP:

“Based on my factual findings, of which I am comfortably satisfied on the balance of probabilities, I consider that the company clearly had a valid reason to dismiss [the applicant]…”