She refused a drug test. Why did Fair Work award her $64,000?

One Minute Summary

Several managers returned from lunch. One manager, who was obviously intoxicated, resigned when requested to take drug and alcohol test. Ms Tamati refused to take a test stating she had only had one alcoholic drink.
The company attempted to force her to take a test stating the policy allowed for random tests, incident and for cause tests, and suspicion tests – even though she showed no signs. They stated the ‘incident’ was the other manager returning intoxicated and therefore she was required to take a test.
She challenged their right to force her to take a test but was ultimately terminated summarily for not following a lawful instruction.
The Fair Work Commission did not agree with the employer and awarded Ms Tamati 6 months wages stating “Ms Tamati’s refusal to take the test was justified”.

A classic case of getting it wrong and paying for it. Several managers return from lunch, and one of them displays signs of being intoxicated. HR goes on a witch hunt, ignores its own policy rules, ignores the law, treats a manager with an unblemished record with disrespect before summarily terminating her. The Fair Work Commission politely but bluntly makes known its displeasure and awards the manager 6 months salary. Let’s examine this more closely.

Ms Tamati, a manager with MQT at their head office, was summarily terminated on 14 April 2025 after being suspended for refusing to take a drug test.

On 10 April she and two other managers had been out to lunch. On their return one of the managers, Mr Helene, displayed signs of intoxication. He was asked to undertake a drug test but decided to resign instead.

The MQT safety manager then recommended the other two managers, including Ms Tamati, be drug and alcohol tested. This was supported by another senior manager present. When Ms Tamati questioned this she was told it was for the purposes of ‘fairness and our duty of care’ as they were at lunch with Mr Helene. The senior manager then interrogated Ms Tamati about the lunch and what she had to drink. Ms Tamati stated she had one alcoholic drink followed by soft drinks. He then stated that because she had been to lunch with Mr Helene (who had been intoxicated and had resigned), and as ‘she acted a little different’ he proposed a ‘suspicion’ alcohol breath test. At this point the senior HR Manager and his subordinate became closely involved and appeared to run the issue.

The conversation took multiple turns and revolved around Ms Tamati taking a drug test because:

She had been to lunch with Mr Helene – he returned intoxicated.
The company had the right to conduct a random breath test under the policy.
They were suspicious that she was also under the influence as she had acted a little differently on her return from lunch.
The policy allowed the company to conduct a ‘post incident and for cause test’. They explained Mr Helene returning from lunch intoxicated was the incident.
She had been to lunch and had admitted to drinking alcohol.

Ms Tamati questioned the grounds on which they were demanding she take the test, that there was nothing random about the random test, that it was purely based on guilt by association and that the company had no right to demand she take a test.

The company representatives then resorted to a giving Ms Tamati a lawful direction (to take the test) which they asserted they had the right to do via a clause in her employment contract.

In response Ms Tamati stated she would do the test if they could tell her on what basis it was required. She was then told ‘please do the test so we can all go home’ as it was getting well into the afternoon. Ms Tamati stated she felt trapped in the small room with three managers interrogating and directing her.

As Ms Tamati refused to take the test, she suspended on pay pending an investigation and a formal meeting the following week.

On 14 April, Ms Tamati was summarily dismissed for refusing a lawful instruction to undertake a drug and alcohol test. At this meeting the company produced the drug and alcohol policy after multiple requests by Ms Tamati. The company representatives again stated they had requested Ms Tamati to take the test ‘post incident and for cause’ because she had been for lunch with Mr Helene.

The Drugs and Alcohol Policy

In examining the company’s drug and alcohol policy it stated that a test could take place as follows:

Pre-employment
On reasonable suspicion
Random testing
Post incident and for cause

The consequences for a (first) non-negative result included the employee be treated with leniency, receiving a warning or being instantly dismissed. A non-negative result following an incident would result in instant dismissal.

No consequences were outlined in the policy for an employee who refused to undergo a test.

Fair Work Commission Proceedings

During the hearing the company stated that as the refusal to undertake the test was in breach of the drug and alcohol policy it was serious misconduct. It also argued that a refusal to follow a lawful direction was a breach of Ms Tamati’s employment contract and that it therefore had a right to summarily dismiss her.

Deputy President Slevin noted the reason given at the time of the termination ‘was not as refined’ as the reason advanced during the hearing. He also noted the reason was not clearly stated in the termination letter.

The DP then stated “I am not convinced the direction to take the test was reasonable and lawful. If the direction to take the test was made in accordance with the policy, then it would be a reasonable and lawful direction”. He noted the meandering discussions concerning random testing, post incident and for cause testing, and duty of care testing which occurred at the time. The attendance at the lunch did not give rise to the suspicion that she had been drinking such that the policy would apply.

The DP also noted that the company representatives were frustrated by Ms Tamati questioning the basis of the test. “Ms Tamati was entitled to make queries given there was no clear basis to require her to undergo the test.” “Ms Tamati’s refusal to take the test was justified in those circumstances”.

The DP then highlighted that while the policy had specific outcomes in relation to a non-negative test result (outlined above) it did not specify a sanction for refusing a test. The company had relied on the Handbook disciplinary process which required an investigation take place. No such investigation occurred.

The DP noted that Ms Tamati had not been accused of showing signs of in toxification – as were described in the policy. “The suggestion that Ms Tamati was acting unusually on her return (from lunch) was no basis for requiring her to do a test”.

Further points made by the DP in his decision included:

The failure by MQT to consider disciplinary action short of summary dismissal; and
That it was unreasonable that termination must take place unless Ms Tamati could adequately explain her refusal to take the test.
That MQT had failed to take into account Ms Tamati’s good record and service to the company and the impact of the dismissal on her.

“I find that MQT acted unreasonably as there was no valid reason for dismissal.”

MQT has since appealed the initial decision, but the Full Bench rejected the appeal.

Commentary

There’s a lot here to digest in this decision. While not stated it appears that there could be an element of Group Think in how the company arrived at this very blinkered outcome. There was no one to stop them or to question the path HR was on.

The company representatives were clearly playing a game of ‘Twister’ in trying to make the drugs and alcohol policy fit what they believe to be Ms Tamati’s ‘crime’. This included attempting to make her behaviour (‘she acted a little different’) pass for being under the influence. If they had bothered to read their own policy it clearly described the behaviours that indicate in-toxification.

Secondly, arguing Mr Helene’s return from lunch intoxicated was an ‘incident’ which then allowed them to test Ms Tamati was a very twisted approach to justification.

The policy clause in relation to employee’s refusing a test lacked a vital part – the consequences of a refusal.

They also breached their own disciplinary policy in the Handbook by not undertaking a proper investigation and considering a lower level of disciplinary action which are both outlined therein.

They treated the right to give a lawful direction as being without limitation. The Deputy President provided some useful guidance on this stating “I am not convinced the direction to take the test was reasonable and lawful. If the direction to take the test was made in accordance with the policy, then it would be a reasonable and lawful direction”.

Reading the decision it could be stated that the HR representatives were frustrated by Ms Tamati challenging their instructions to take the test. They were determined to find a way to make her refusal into a serious misconduct offence punishable by summary dismissal.

Consider how this decision was perceived by the 1500 employees of MQT. What is their view of senior management and particularly the HR function. It takes a lot of consistent positive actions to build trust with your employees but it can all be destroyed with one ill-advised action.

Even if employers think they are on solid grounds it is recommended that they get a second (legal) opinion. An independent review would have highlighted multiple issues with the path MQT was on. If you require advice or just a review, please contact Hunter Employee Relations.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au