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Worker’s refusal to undergo drug test was not misconduct

Employer’s treatment of the worker was ‘inappropriate’ and ‘inflammatory’.
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Worker’s refusal to undergo drug test was not misconduct

Worker’s refusal to undergo drug test was not misconduct

8 March 2021

By Gaby Grammeno

When a judge overturned an insurer’s decision to discontinue a worker’s weekly compensation payments because of his employer’s allegation of ‘serious and wilful misconduct’, the employer appealed that order. A higher court has dismissed the appeal, however, and criticised the employer’s treatment of the worker as ‘inappropriate’ and ‘inflammatory’.

The drug test

The worker was employed by an Adelaide company providing painting and related building services.

In June 2017 he injured his lower back while unloading equipment at a job site. His ongoing pain and the psychological consequences of the injury incapacitated him for work and entitled him to workers compensation. He was prescribed powerful painkillers, including opioid-based drugs, to manage the pain.

Three months later, his employer received a work capacity certificate indicating that the worker had a ‘partial capacity’ for work. A subsequent work capacity certificate dated 5 September 2017 certified the worker as unfit for work until 19 September.

At a meeting on 6 September 2017, however, the employer raised with the worker a series of allegations of misconduct on his part. They claimed he’d evaded attempts to contact him over a number of weeks to arrange his return to work, and said he’d been observed two days earlier undertaking home renovations and displaying a level of activity inconsistent with the restrictions then certified.

At the meeting, one of the company’s director called him a ‘drug addict’ and told him he’d have to submit to a drug and alcohol test that day, which provoked an angry response from the worker, who swore at him.

The worker refused to undergo the test, which the employer interpreted as tantamount to a positive result.

The worker denied the allegations, but later the same day the employer asserted in a letter that the allegations had been proven, and terminated his employment summarily on the ground of serious and wilful misconduct.

Shortly after that, the Return to Work Corporation of South Australia discontinued his weekly payments because of the claimed misconduct, in accordance with s 48(2)(e) of SA’s Return to Work Act 2014.

The worker disputed this decision and the case went to trial.

In court

At the trial, the employer’s position was that the worker had engaged in conduct inconsistent with the necessary degree of co operation between employer and employee and this was a ‘breach of mutuality’, because he’d disobeyed a reasonable direction and hadn’t co operated with a process to return him to work.

The trial judge held that the employer had acted unreasonably in ordering the worker to take a drug test at a time when he was not expected to be working for at least another couple of weeks.

The employer claimed they’d only received the first page of the medical certificate stating that he was unfit for work for another two weeks, but there was evidence that in fact they’d received the whole of the certificate.

Moreover, the employer knew the worker had been taking anti-depressants and opioid painkillers for his work injury – which could have produced a positive test result.

The judge noted that the danger of adopting pre-determined sanctions for non-compliance with the drug and alcohol policy is that it may produce an unfair outcome in some circumstances.

She found that one of the directors had sought to mislead the court as to what transpired in relation to the drug test.

Her Honour also found that the worker’s outburst when a director called him a ‘drug addict’ did not amount to serious and wilful misconduct or a breach of mutuality.

‘The concept of mutuality is directed not only to the conduct of the worker, but also the conduct of the employer,’ she said. The allegation that he was a drug addict was ‘not only inappropriate, it was inflammatory’.

The judge considered that the employer’s actions had been unreasonable, and set aside the decision to discontinue the worker’s compensation payments.

The Appeal

The employer appealed that order, claiming there had been errors of law in the trial, and the appeal was heard in the South Australian Employment Tribunal.

The deputy president reviewed the evidence and found no errors of law in the earlier proceeding.

He dismissed the employer’s appeal.

The bottom line: The predetermined outcome of a refusal to undertake a drug and alcohol test, in the circumstances of this employer, rendered the policy liable to criticism.

Read the judgment

Bradley Painting Pty Ltd v Oliver and Return to Work Corporation of South Australia [2021] SAET 34 (25 February 2021)

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