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Developing a drug and alcohol policy and set of supporting procedures is important to workplace safety and health. When correctly written and communicated, they establish employer and worker rights and give employers the basis for defending actions taken should workers file labour complaints. Writing and enforcing drug and alcohol policies can be a complex process and even employers with the best of intentions may discover during worker appeals that the policies or methods of enforcement have flaws. Borrowing an old adage for a moment, “The devil is in the details.” In other words, employers must understand the law, how it will be interpreted, and include specificity in drug and alcohol policies and procedures so there is no way anyone could misinterpret the intent.
Indisputable Evidence
A good way to understand these types of issues is to review actual situations that occurred in Australian workplaces. The first example is the case of Mr. Shane Jeffrey Ley v Macmahon Contractors Pty Ltd [2011] FWA 694.1 In March 2010, a leading worker for Macmahon, Mr. Ley, tested positive for alcohol. He was given a warning and informed he had violated the drug and alcohol policy. The warning said that he would be dismissed from employment should he test positive for alcohol again. He signed the warning acknowledging he had read the D&A policy. In October 2010, Mr. Ley tested positive again.
Mr. Ley attributed the positive reading to drinking the day before at a rugby match. He was dismissed the day of the second positive reading, having violated the D&A policy by testing positive twice within a 12-month period. He took six BAC tests on that day, and the employer used three different testing machines. One machine tested negative on the second test. Mr. Ley brought unfair dismissal proceedings because the policy states that, “If a reading greater than 0.00% BAC is received the first result shall be entered to the positive BAC record sheet and a re-test shall be conducted 20 minutes following the initial test, but no longer than 30 minutes. If the result is 0.000 BAC no further action required.”
Since six tests were given, the employee believed the employer should have stopped testing when the second test showed 0.000 BAC compared to .039 percent on the first test. Macmahon said it was clear that someone’s BAC could not drop that quickly in 20 minutes so the second test had provided a false negative. Fair Work Commissioner Cloghan agreed, and said it was indisputable that the worker had alcohol in his blood and had directly violated D&A policies.
Clearly Stated and Clearly Communicated
In the second situation, a Fair Work Australia Commissioner decided to reinstate a worker who had been fired for failing a random alcohol test. The Commissioner decided the employer’s drug and alcohol policy was not clearly stated, not properly communicated, and was not specific enough. The worker had recorded a BAC of .018 and .011 on two different tests at a mine work site. After the second positive test, the worker was terminated. Fair Work Australia found a number of wording problems in the policies. They included a failure to mention cut-off levels, confusing wording about what positive results include, vagueness about company premises, and lack of effectiveness in the D&A testing process. In addition, the first and final warning letter states that similar behaviour occurring again will result in a final warning letter. The employee was reinstated due to the confusion in the policies and procedures.2
The Ley v Macmahon case shows the importance of having specific policies in place that are defensible and reasonable. The second case demonstrates the need to have policies and procedures that are unequivocal and cannot be interpreted in different ways, depending on who is reading them. Employers must write specific, definitive, legally clear drug and alcohol policies and procedures and then clearly communicate them to workers in terms of wording and meaning. Employees should also understand the consequences of testing positive for drugs and alcohol.
Mediscreen (mediscreen.net.au) is a NATA accredited company that helps employers ensure testing is completed using the highest possible standards. Employers can rely on the quality of Mediscreen’s services for onsite collection, storage, and dispatch of saliva and urine samples.
Indisputable Evidence
A good way to understand these types of issues is to review actual situations that occurred in Australian workplaces. The first example is the case of Mr. Shane Jeffrey Ley v Macmahon Contractors Pty Ltd [2011] FWA 694.1 In March 2010, a leading worker for Macmahon, Mr. Ley, tested positive for alcohol. He was given a warning and informed he had violated the drug and alcohol policy. The warning said that he would be dismissed from employment should he test positive for alcohol again. He signed the warning acknowledging he had read the D&A policy. In October 2010, Mr. Ley tested positive again.
Mr. Ley attributed the positive reading to drinking the day before at a rugby match. He was dismissed the day of the second positive reading, having violated the D&A policy by testing positive twice within a 12-month period. He took six BAC tests on that day, and the employer used three different testing machines. One machine tested negative on the second test. Mr. Ley brought unfair dismissal proceedings because the policy states that, “If a reading greater than 0.00% BAC is received the first result shall be entered to the positive BAC record sheet and a re-test shall be conducted 20 minutes following the initial test, but no longer than 30 minutes. If the result is 0.000 BAC no further action required.”
Since six tests were given, the employee believed the employer should have stopped testing when the second test showed 0.000 BAC compared to .039 percent on the first test. Macmahon said it was clear that someone’s BAC could not drop that quickly in 20 minutes so the second test had provided a false negative. Fair Work Commissioner Cloghan agreed, and said it was indisputable that the worker had alcohol in his blood and had directly violated D&A policies.
Clearly Stated and Clearly Communicated
In the second situation, a Fair Work Australia Commissioner decided to reinstate a worker who had been fired for failing a random alcohol test. The Commissioner decided the employer’s drug and alcohol policy was not clearly stated, not properly communicated, and was not specific enough. The worker had recorded a BAC of .018 and .011 on two different tests at a mine work site. After the second positive test, the worker was terminated. Fair Work Australia found a number of wording problems in the policies. They included a failure to mention cut-off levels, confusing wording about what positive results include, vagueness about company premises, and lack of effectiveness in the D&A testing process. In addition, the first and final warning letter states that similar behaviour occurring again will result in a final warning letter. The employee was reinstated due to the confusion in the policies and procedures.2
The Ley v Macmahon case shows the importance of having specific policies in place that are defensible and reasonable. The second case demonstrates the need to have policies and procedures that are unequivocal and cannot be interpreted in different ways, depending on who is reading them. Employers must write specific, definitive, legally clear drug and alcohol policies and procedures and then clearly communicate them to workers in terms of wording and meaning. Employees should also understand the consequences of testing positive for drugs and alcohol.
Mediscreen (mediscreen.net.au) is a NATA accredited company that helps employers ensure testing is completed using the highest possible standards. Employers can rely on the quality of Mediscreen’s services for onsite collection, storage, and dispatch of saliva and urine samples.
This article has been taken from : http://www.mediscreen.net.au/importance-of-specificity-in-da-policy-and-procedures/
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