FWC commissioner finds drug test result stands despite "unfortunate" form error
Toll Transport was right to dismiss a worker who breached the company’s drug policies after testing positive for methamphetamine, despite the worker’s claims of inconsistencies in the testing process, according to a decision of the Fair Work Commission.
The worker, who had worked for Toll for about nine years in the Express Parcels unit of the company’s Port Melbourne site, tested positive for opiates in a random drug and alcohol test in October 2017.
Following the positive result, the worker was stood down from work immediately while the sample was sent to a laboratory for confirmation testing.
Results from that second test were received four days later, testing positive for codeine at 60µg/L and methamphetamine at 233µg/L – a level Toll told the FWC was 10 times above the acceptable level of 25µg/L for methamphetamines.
The worker told Toll he had concerns about the integrity of the sample, saying he had used a dirty cup to drink from prior to giving the sample, and also saying he had found it difficult to double check that the samples were his, saying the seal numbers on samples taken had not been recorded.
The FWC heard from the person who collected the samples on the day, who told the FWC she had forgotten to fill out the testing form correctly by not recording the ID number of the collection tubes before giving a copy of the testing form to the worker.
Fair Work Commissioner Michelle Bissett said that while the fact that this had occurred was “unfortunate”, she nonetheless believed that the testing laboratory had received the correct samples from the worker.
She noted that under Australian standards for specimen collection, a second sample for any test should have a secure label placed on the container and be sealed with tamper-evident seals initialled by the person giving the sample.
Bissett found that the initials on the collection tubes were those of the worker, and heard that the collection tubes were received at the laboratory with the seals intact.
“I have reached this conclusion because the barcode on the Testing Form in (the worker’s) possession is the same as the “Specimen No:” on the Results Form and the control I.D number on the collection tubes aligns with the “Kit number” on the Results Form,” she said.
“I am therefore satisfied that the A-sample tested… is the sample provided by (the worker) and that the chain of custody for the sample was properly maintained.”
While Bissett said that it was unusual results of the B sample test had not been sent directly to the worker, rather than Toll, it did not alter her decision.
“(The worker’s) drug test was returned with a level of detected methamphetamine well in excess of the acceptable level,” she found.
“No plausible reason has been put forward to suggest that there was any error that would bring this result it into question.”
As a result, the worker’s dismissal from Toll was in line with the company’s procedures and not harsh, unfair or unreasonable.
“In this case the conduct occurred and it provided a valid reason for dismissal,” Bisset said.