Few workplace issues spark more disputes than drug and alcohol testing. Employees may question whether their employer can demand a test at all, whether the chosen method is fair, or whether the consequences of a positive result are too harsh.
These disputes turn on a long-standing principle of Australian employment law: workers must comply with directions that are both lawful and reasonable. This obligation, recognised by the High Court as early as R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601, is implied into every employment contract and continues to guide decisions today.
When is drug and alcohol testing a ‘lawful and reasonable direction’?
For a testing regime to be enforceable, the employer’s direction must satisfy both parts of the test.
Lawful
The requirement to test must not breach the law, the employment contract, or privacy and health obligations. Employers are on strongest ground where the policy is:
- In writing and clearly communicated;
- Consistently applied across the workforce; and
- Linked to workplace health and safety duties.
Case example: In Briggs v AWH Pty Ltd [2013] FWCFB 3316, Briggs, was employed by AWH as a Stores Officer. He was asked to submit to urine drug testing, however, he refused preferring to give a saliva swab, as being less invasive and ‘best practice.’ AWH subsequently dismissed him for breaching the company’s drug and alcohol policy.
The Fair Work Commission found the employer’s direction was lawful, as the testing method was clearly set out in the company’s policy as were the consequences of refusal, both of which Briggs agreed he was familiar with.
Reasonable
The direction must be proportionate to the risks of the job and must be connected to the worker’s employment. In safety-sensitive industries like mining, transport, construction, and aged care, random or blanket testing is usually reasonable. In lower-risk office environments, reasonableness may depend on the circumstances, such as an incident or where impairment is suspected.
Using the case example of Briggs, AWH was the provider of a range of storage and associated logistics and warehousing services. As part of its commercial undertakings to its clients, AWH required urine drug testing to be carried out. On the test date, all employees working on the site were directed to undergo testing. To meet its client obligations and to ensure its policy was consistently applied to all its employees, Briggs could not be excluded from compliance.
The Fair Work Commission accepted that AWH had reasonably implemented a drug testing policy and rejected Briggs’ argument that employees may choose their preferred method of testing. The Fair Work Commission found employers are entitled to implement reasonable testing policies and require employees to comply with them.
What happens if you refuse?
Refusing a lawful and reasonable direction to take a test may amount to serious misconduct. This can justify summary dismissal, particularly in safety-critical roles. By contrast, where a direction is ambiguous, unreasonable, or not properly supported by policy, refusal may be justified. In such cases, dismissal may be overturned as unfair.
Case example: In Lee Witherden v DP World Sydney Limited [2025] FWC 294, a stevedore was dismissed after testing positive for a cocaine metabolite during a random drug test, in breach of the employer’s drug and alcohol policy. In assessing the dismissal, the Commission examined the adequacy of the policy and found that it failed to inform employees that testing would detect not only drugs but also inactive metabolites, and that the presence of these metabolites would constitute a positive result even after the parent drug had left the employee’s system and no intoxication remained. The policy also did not make clear that its purpose extended to managing the potential hangover effects associated with prior drug use.
These deficiencies contributed to the Commission’s conclusion that dismissal was disproportionate. The termination was found to be harsh and unreasonable, and the employee was ordered to be reinstated.
Practical guidance for employees
If you are directed to undergo a drug or alcohol test:
- Check the policy: Is the testing method clearly specified?
- Assess the context: Is your role safety-critical? Is your performance impaired?
- Consider the method: Is it aligned with policy and proportional to the risk?
- Avoid outright refusal: Instead, clarify in writing and seek advice before declining.
How JFM Law can help
Drug and alcohol testing remains a frequent battleground under the lawful and reasonable directions principle. While employers often have strong grounds, especially in safety-sensitive industries, many nuances persist around testing methods and consequences. If ever in doubt, seek advice before responding. At JFM Law, we assist employees in navigating complex areas of workplace testing, including:
- Determining whether a direction to test is lawful and reasonable.
- Advising on challenges around test methods or consequences.
- Representing you in unfair dismissal or general protections claims.
If in doubt, call us on (02) 9199 8597 or email us and seek legal advice before acting.
The information contained in this post is current at the date of editing – 28 January 2026.