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 Jaclyn Fenby on (02) 6583 0431.

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