Edge Legal
A FWC full bench has upheld (MQT Pty Ltd v Chantelle Tamati [2025] FWCFB 265 (20 November 2025)) a $63,500 compensation order for an employee dismissed after refusing a drug and alcohol test following a four-hour lunch at a pub primarily on the basis that the employer failed to strictly follow its own drug and alcohol policy and did not properly explain why the test was required.
The Full Bench relied on the employer’s policy not setting out the consequences for refusing a test and not mandating a dismissal for a non-negative result.
Our Take
Another failure of the ‘Pub Test’? Possibly.
We understand why some employer commentators are once again bemused by FWC’s recent trend (see previous article) of seemingly overly focusing on technical reasons to prevent the valid dismissal of employees who put other workmates safety at risk by failing to comply with the very ‘rules’ designed to keep everyone safe. It is doubtful that anyone really thinks an employee returning from a 4 hour lunch refused to take the ‘test’ because they just didn’t ‘understand’ the consequences of a policy.
Having said that, employers are now firmly ‘on notice’ that D&A policies must be clear and consistently applied. FWC made it clear: employers can’t improvise disciplinary outcomes or assume employees know the stakes. If your D&A policy doesn’t spell out consequences for refusal, you’re on shaky ground.
Action Items
Review Drug and Alcohol Policies NOW - Ensure policies clearly outline testing triggers, refusal consequences, and disciplinary steps. Our retainer clients can access our D&A policy template here. Like all policies – they need to be tailored to your operational circumstances. ‘Off the shelf’ is the start – not the finished product.
Communicate Expectations - Train managers and HR to explain the basis for any test and the implications of refusal—before action is taken.
Document Everything - Keep accurate records of conversations, instructions and reasons for testing. Consistency is key.
Train on Procedural Fairness - Make sure advocates and decision-makers understand hearing protocols and evidence requirements.
Audit Compliance - Regularly check that your disciplinary processes align with policy and legal standards.
