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Hair testing results are still a matter of interpretation if you want to prove consumption of drugs by employees.

In 2017 to 2018 I was involved in some novel litigation in the Industrial Relations Commission of New South Wales. The issue considered in that litigation has been considered by the IRC again.

I now know more about the science of hair testing and the art of interpreting hair testing results than I would probably care to. What has been enlightening is how much most people assume hair testing is an infallible means of proving whether or not someone has taken i.e. consumed or ingested drugs. Actually, it is not.

In the matter of Zisopoulos I acted for the Police Officer, Mr Zisopoulos. He brought an application for review of a decision to remove/dismiss him from the police force under the Police Act 1990 (NSW), which is akin to (but not exactly the same as) an unfair dismissal claim. See the decision: Zisopoulos v Commissioner of Police [2018] NSWIRComm 1011

The brief background to Mr Zisopoulos’ matter is that he submitted for a random urine screening test for drugs. Those tests provide the tester with a colour result showing either negative or non-negative (not positive). Mr Zisopoulos’ sample was “non-negative” meaning it was not negative (but not necessarily confirmed positive for a specific type of drug) and was consistent with the prescription medication he had confirmed he had taken.

Unusually Mr Zisopoulos was asked to provide a sample of his hair. Requests for hair testing is not a common practice in workplaces as the testing process is quite costly. However a big benefit of hair testing is that there is a longer drug use history window – on average 3 months as compared to 2-3 days for urine testing. Mr Zisopoulos’ hair sample returned a positive result for very small amounts of MDMA and methylamphetamine.

The Commissioner of Police found that Mr Zisopoulos had deliberately consumed illicit drugs and rejected the argument that he was exposed to illicit drugs on a regular basis in the workplace resulting in his hair being environmentally contaminated.

Environmental contamination is where the drugs can incorporate into the hair follicle including by: being washed into the hair (either by normal washing or through the hair testing process) or a combination of rubbing your hair and your natural sebum or sweat causing the drug to enter into the hair follicle.

The Commissioner of Police was satisfied that Mr Zisopoulos’ positive hair test results were because of one off or occasional use of MDMA and methylamphetamine.

When the matter came before the IRC the main issue was not that the officer’s hair sample tested positive for MDMA and methylamphetamine, rather the Commissioner of Police’s finding that the results were more likely explained by Mr Zisopoulos’ voluntary ingestion of the drugs rather than by the environmental contamination of his hair.

Ultimately Mr Zisopoulos succeeded and obtained orders for reinstatement because Commissioner Murphy of the IRC found that:

“Contrary to the respondent’s contention that the applicant’s case invites an admixture of theoretical possibility, speculation and surmise, the evidence of the expert witnesses, which I accept, has demonstrated that external contamination of the applicant’s hair, as a result of handling MDMA and methylamphetamine as part of his duties as a police officer, is more than a theoretical possibility but is at least as likely, or more likely, an explanation for the test results of the applicant’s hair sample than is ingestion of the drugs by the applicant…”

“…the expert evidence in the present matter weighs heavily in favour of the applicant’s explanation of environmental contamination as the cause of the positive test result of his hair sample.”

Mr Zisopoulos’ matter was appealed by the Commissioner of Police and the hearing proceeded in May 2018. A decision by the Full Bench of the IRC is currently reserved.

Interestingly, a decision has been handed down yesterday in the matter of Stefan Elias v Commissioner of Police [2019] NSWIRComm 1026. A similar set of circumstances arose in that matter where Mr Elias was dismissed because the Commissioner of Police had found he had consumed cocaine.

Mr Elias was subjected to a targeted urine drug screen at work after it was raised with his employer that Mr Elias (and other officers) may have been exposed to and even taken drugs in their personal time. Mr Elias’ urine test was negative.

Mr Elias confirmed he was in company of those who he understood were in possession of, or had consumed cocaine, but at all times denied he had consumed cocaine.

The Commissioner of Police determined that Mr Elias had consumed cocaine and made a decision to remove him from the police force.

Mr Elias made an application for review in the IRC.

The same issues with the ability to interpret low levels of positive drug results in hair testing were subject of this case as well.

After considering the evidence of the experts engaged in the matter, Chief Commissioner Kite concluded that “the balance of the scientific evidence points to an inability to determine that personal use is the source of the positive result.”

Ultimately Chief Commissioner Kite found that:

“At its highest the respondent can show that, on the science, there is an equal likelihood of ingestion or environment exposure. That is insufficient. I must be able to conclude that it is more probably than not, having regard to the very serious allegation alleged, that the applicant deliberately ingested cocaine.”

We now await the outcome of the appeal in Mr Zisopoulos’ matter as that will clearly have implications on Mr Elias’ matter.

These matters will impact on the extent to which employers can rely on hair testing when testing for illicit drug use by their employees. Given the current state of the law, it would be best for employers to have other indications of deliberate illicit drug consumption before automatically making findings against an employee in particular where the employee can point to external contamination sources as being a possible or even likely cause of positive hair test results.