News & Insights

The Chamber of Commerce and Industry South Australia (‘Business SA‘) has released a discussion paper outlining the current drug epidemic affecting the South Australian workforce, aptly titled “The Ice Age”.

The paper is a timely reminder for employers to tighten their procedures, policies and management concerning drug use, especially around disciplinary procedures that may flow on from any positive drug test results.

This may be a useful point in time for businesses to review and consider tightening their relevant policy documents accordingly.

Discussion Paper findings

Drug testing data indicates that 1.9 per cent of employees tested positive for ice and other methamphetamine use in 2017. This equates to 18,500 employees in hazardous industries, including construction, mining and transport, working with methamphetamine’s in their system on a daily basis.

The actual figure of drug use in the workplace is likely to be much higher, with many workplaces not testing for drug use. The testing also did not include white-collar or hospitality workers who make up a large portion of the workforce.

According to Business SA senior policy adviser, Estha van der Linden, people who take methamphetamine’s feel the effect for up to 48 hours.

This means employees may not know they are still under the influence when they attend work. They may also be unpredictable, have mood swings and be at risk of psychotic episodes.

The importance of drug policies

In light of the discussion paper, employers are encouraged to have robust drug testing policies and procedures in place clearly stating the business’ level of tolerance towards drug use. Such a policy goes a long way in protecting employers against unfair dismissal claims.

For example, In Toms v Harbour City Ferries [2015] FCAFC 35, a Full Court of the Federal Court endorsed a decision of the Fair Work Commission that an employer was well within its rights to maintain a “zero tolerance” drug and alcohol policy.

This policy resulted in the dismissal of an employee who failed a drug test after a ferry he was driving struck a wharf pylon. The dismissal was upheld despite the employee not being impaired at the time of the incident.

Employers must also ensure that policies are clear and effectively communicated to employees. In Perkins v Golden Fodder Australia Pty Ltd [2004] SAIRComm 5, an employer was ordered to pay $37,000 compensation to an employee who was dismissed after refusing a drug test required under the company’s drug policy.

The Commission found the employer was not clear on the application of the policy, rendering it confusing and useless for the purpose it was intended.

What this means for you and your business

Employers have a legal obligation to comply with occupational health and safety requirements in providing a safe workplace.

Workplace drug policies ensure businesses are prepared for incidents, accidents and emergencies, along with knowing how to deal with employees suspected of drug use. These may also mitigate liability in some circumstances.

Policies should be reviewed and updated on a regular basis to ensure they are up to date with the most recent legal developments and legislative change.

If your business requires a drug policy or would like its current policy reviewed, please contact our Employment, Safety and Migration team.

This article was written by Serpil Bilgic, Lawyer – Commercial.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.