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The out­come of a recent unfair dis­missal case serves as a time­ly reminder of the impor­tance of adher­ence to work­place poli­cies and of ensur­ing pro­ce­dur­al fair­ness when it comes to deter­min­ing employ­ee mis­con­duct or imple­ment­ing ter­mi­na­tion arrange­ments.

In Moore v Spe­cial­ist Diag­nos­tic Ser­vices Pty Ltd t/a Dore­vitch Pathol­o­gy the Fair Work Com­mis­sion ruled that an employ­ee was unfair­ly dis­missed after she refused to take a urine test, as the employer’s request was not in accor­dance with its own com­pa­ny pol­i­cy or Aus­tralian stan­dards.

After Dore­vitch Pathol­o­gy received an alle­ga­tion that an employ­ee — Ms Mer­rin Moore — was using illic­it drugs, Ms Moore was asked to under­take a urine test. While she indi­cat­ed that she was will­ing to under­go the test, Ms Moore object­ed to the require­ment that her super­vi­sor take the sam­ple, and sub­se­quent­ly left her work­place, pro­vid­ing a med­ical cer­tifi­cate and advis­ing she would not be return­ing to work. Upon her return to her work­place for a meet­ing sev­er­al weeks lat­er, Ms Moore was ter­mi­nat­ed for ‘seri­ous mis­con­duct’.

The Com­mis­sion­er ruled that Ms Moore had been unfair­ly dis­missed on the basis that she was not offered pro­ce­dur­al fair­ness regard­ing the required urine test, and that the com­pa­ny was not fol­low­ing its own pol­i­cy nor meet­ing Aus­tralian stan­dards. The Com­mis­sion­er also ruled that Ms Moore’s behav­iour did not con­sti­tute ‘seri­ous mis­con­duct’.

Pro­ce­dur­al fair­ness is an imper­a­tive part of the dis­missal process.  It is vital that employ­ers clear­ly out­line all alle­ga­tions to an employ­ee and pro­vide an oppor­tu­ni­ty for them to respond. In this case, the Com­mis­sion­er deemed Ms Moore was not clear­ly noti­fied of the rea­son for her dis­missal, nor giv­en the oppor­tu­ni­ty to respond.

The Fair Work Com­mis­sion decides on cas­es of unfair dis­missal. There are dif­fer­ent dis­missal rules for small busi­ness­es. It is impor­tant employ­ers are aware of the require­ments when it comes to employ­ee ter­mi­na­tion.
Fur­ther infor­ma­tion about unfair dis­missal and the require­ments for busi­ness­es, includ­ing those for small busi­ness­es, can be found here.

We are ready to assist you estab­lish­ing appro­pri­ate poli­cies and pro­ce­dures with­in your organ­i­sa­tion. We can also assist nav­i­gat­ing the reg­u­la­tions around employ­ment with­in small and large busi­ness­es.

For fur­ther infor­ma­tion please con­tact Dono­van Oates Han­naford on 02 6583 0400 or info@dohlaw.com.au.

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