Case shows importance of good record keeping

By Aaron Dearden, Senior Associate

First published in the NBR, 11 July 2008

Employer policies on matters such as drug and alcohol testing are an important part of managing a workforce.

To be effective and able to withstand legal challenge, employers must be vigilant in maintaining records of employees’ attendance at training about such policies. Employers may also be called on to show that the employees were aware of the content of policies.

Peter Kidd v Linfox Australia Pty Ltd is a recent case in the Australian Industrial Relations Commission (AIRC), which highlights that if employers intend to rely on workplace polices, it is important to have:

Records showing employee attendance at training about the policy;
Evidence of the general awareness of employees about the policy; and
Apply the policy in an appropriate manner.

Mr Kidd was a Linfox employee with over 20 years service driving between Melbourne and Sydney. When he arrived at the Sydney depot in December 2007 he was told he would be required to undergo a random drug and alcohol test. Mr Kidd agreed. The test involved taking saliva samples. Mr Kidd went to the office to undertake the drug and alcohol test twice but on each occasion was asked to come back because he was either eating food or drinking coffee, which could compromise the sample.

Mr Kidd then left the depot to drive to Melbourne without completing the test.

Linfox supervisors attempted to contact Mr Kidd by calling the truck mobile phone (but it was broken) and sent him two SMS messages. The SMS messages warned Mr Kidd to return to the depot for testing or face disciplinary action. Mr Kidd claimed that when he received the SMS messages he had travelled too far out of Sydney, and that he did not want to return to Sydney because his wife’s grandmother was gravely ill in hospital and not expected to survive the night.

Linfox contacted the police and asked them to stop Mr Kidd and breath test him. The police did this and Mr Kidd passed the breath test. When Mr Kidd arrived at the Melbourne depot he passed a drug test.

Despite the test results, Linfox dismissed Mr Kidd because he intentionally refused to undergo a drug and alcohol test and refused to obey instructions to return to work for the test.

Mr Kidd challenged his dismissal in the AIRC.

An important issue, which arose in the case, was Mr Kidd’s awareness of the Linfox drug and alcohol policy. He denied attending, or receiving, formal training about the policy. Linfox claimed Mr Kidd and other employees attended ‘stop for safety’ meetings, submitted that the policy was on the employee notice board along with other policies and that there was, at the very least, a general awareness of the policy.

The AIRC found that Linfox had been unable to show that Mr Kidd:

Had attended the drug and alcohol training (Linfox did not produce any attendance list showing the employee attended training);
Had been given a copy or summary of the policy; or
Knew about the detail of the policy or the ‘general thrust’.

Mr Kidd was reinstated to his employment by the AIRC with lost wages.

The case underlines the importance for employers to ensure records are kept of attendance at all training sessions about policies. This is particularly important where the policy may be used to justify the termination of employment. If policies are updated or varied this should also be recorded in employee records.

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