Commission rules Linfox offside on drug policy

By: Jason Whittaker

Date: 11.06.2008

The Australian Industrial Relations Commission (AIRC) has cast doubt on the ability of trucking companies to fire staff if they

The Australian Industrial Relations Commission (AIRC) has cast doubt on the ability of trucking companies to fire staff if they refuse or fail a drug or alcohol test.

The AIRC found trucking giant Linfox was wrong to terminate a driver’s contract for not submitting to a saliva test because the company failed to inform him of his obligations under its drug and alcohol policy.

It also found Linfox had breached its own policy by trying to test him.

The AIRC heard the company fired long-time driver Peter Kidd after he left the Linfox’s Sydney depot despite being told he needed to be tested before driving off.

But upon hearing evidence, Hamilton ruled while Kidd was aware of the company’s Drug and Alcohol Policy 2006 , he was "ignorant" of what it meant because he had not been handed a copy of the document to read through prior to being tested.

AIRC Deputy President Reg Hamilton says employees must be fully-informed of relevant policies and understand their implications before companies can counsel or fire them.

Linfox argued Kidd should have known what was expected because the company had placed a copy of its policy in the depot’s tea room.

However, Hamilton argued this was not good enough, saying Linfox needed to ensure employees sign to say they understand the policies as well as receive ongoing training to guarantee they stay informed.

Furthermore, Kidd told Hamilton he never went to the tea room.

According to Kidd, he knew Linfox had a drug and alcohol policy in place but did not know "a great deal about it, to tell you the truth" because he had never read it.

Linfox’s policy sets out a number of conditions for entry, which includes the stipulation that a random drug test can be taken and any refusal or failure of the test may result in termination of employment.

Hamilton also ruled that a driver cannot be tested more than once if a company’s drug and alcohol policy stipulates employees may be tested randomly on annual basis.

Hamilton says an employee can refuse to be tested more than once and not be fired for doing so under this provision.

"Mr Kidd had already been randomly blood tested in that calendar year and on this interpretation no more than one annual random drug and alcohol test was authorised by the policy," Hamilton says.

"I am unable to find on the evidence before me that Mr Kidd breached the 2006 policy."

Furthermore, the commission found trucking companies must take into account other factors beside a failed or refused drug test before attempting to fire an employee.

Citing a previous case involving retailer Woolworths, Hamilton argued employers must also consider prior history and length of service.

And as Kidd had been a driver for Linfox for 20 years with incident, Hamilton ruled his treatment by the company was unjust and unreasonable. According to the AIRC, a warning should be given instead.

Linfox, however, argued it had no choice to fire Kidd on the grounds that keeping him employed would jeopardise the integrity of its drug and alcohol policy by indicating to other employees they too could refuse a drug test and get away with it.

Hamilton refused to accept the company’s argument because of Kidd’s lack of understanding.

"If Linfox had proved by satisfactory evidence that Mr Kidd had been properly trained in the 2006 policy, or knew about its details, or had proved that the policy authorised the random test, my decision may have been very different to the one today," Hamilton says.

The AIRC ordered Linfox reinstate Kidd to his position within the company as well as compensate Kidd for lost wages.