In a decision that’s bound to have repercussions on workplace drug testing practices around the country, the NSW Industrial Relations Commission (NSWIRC) has ruled that its initial decision to reinstate a NSW police officer dismissed over a positive drug test was correct.
On 16 April 2015, NSW police sergeant George Zisopoulos undertook a random workplace urine test, which led to a positive drug result. From there he was required to provide a hair sample. However, subsequent testing of his urine sample revealed it only contained legally taken medications.
But, the hair follicle laboratory test returned a positive reading for MDMA and methamphetamine, along with the legal medications. Officer Zisopoulos was then suspended from duty with pay on 16 May 2015.
On 30 March 2016, then NSW police commissioner Andrew Scipione dismissed Zisopoulos in line with section 181D of the Police Act 1990 (NSW), finding that “on the balance of probabilities, and having regard to the seriousness of the allegation” he “voluntarily” consumed the drugs.
The initial ruling
Mr Zisopoulos appealed his dismissal to the NSWIRC in August 2017, on the basis that the illicit substances were present due to external contamination, as he’d been exposed to illegal drugs as part of his job on a number of occasions in the three months leading up to his positive drug test.
On 7 March last year, NSWICR Commissioner John Murphy found that his dismissal was “harsh, unreasonable and unjust”, recommending the sacked officer “be reinstated to the New South Wales Police Force at the rank and incremental level he held at the date of his removal”.
Key aspects leading to Commissioner Murphy’s determination were that Zisopoulos was on duty when both drugs were dealt with at Newtown police station, it was not necessary to find that the officer had come directly into contact with these drugs, but rather that it was possible he did.
Of relevance was expert testimony to the effect that it was “as likely, or more likely” that external contamination had taken place, instead of ingestion of the drugs. And the Briginshaw standard – a higher standard of proof required in serious civil cases – had not been met by the police case.
The NSW police commissioner appealed the reinstatement decision to the NSWIRC on 15 grounds that raised six questions, three of which the commission found involved matters that warranted an appeal.
Two of these questions were considered together by the NSWIRC, as they both pointed to a failure by Mr Zisopoulos to establish that his removal from the force was “harsh, unreasonable or unjust”, as set out in section 181F of the Police Act.
In relation to this assertion, the full bench of the commission considered the findings of the common law authority of Tredinnick versus the Commissioner of Police in 2016, which was a case upon which the NSW police commissioner based part of his submissions on appeal.
The Industrial Relations Commission rejected this argument, as Tredinnick pointed to the need for the police commissioner to introduce fresh evidence on appeal to prove the dismissal was warranted, rather than Zisopoulos having to prove external contamination.
This was because in the original appeal, Zisopoulos had successfully established flaws in the police commissioner’s reasons to dismiss him, which meant the “convincing proof on the balance of probabilities” hadn’t been achieved for what was a serious matter.
In the public interest
The second ground considered by the NSWIRC involved the police commissioner’s claim that the original Industrial Relations Commission decision had failed to regard the “public interest” implications of its ruling, as is required under section 181F of the Police Act.
In his written submission for the review of the original appeal, the NSW police commissioner stated that instead of considering the risk it could have upon the “integrity of the Police Force”, the NSWIRC commissioner had instead decided to give Zisopoulos “the benefit of the doubt”.
The full NSWIRC bench found that “there was little doubt” Commissioner Murphy “was alert to the importance of the public interest”. And it further determined that this consideration “cannot be used to bolster equivocal evidence”.
If the public interest was used to strengthen indefinite evidence, then the commission would be found to be disregarding the interests of the officer in question, and the legislation requires that his interests be equally considered.
The IRC commissioners went on to explain that Commissioner Murphy was required to take into account whether Zisopoulos’ case cast doubt on that put forth by police, and if this was the case, then it was up to the police commissioner to provide evidence as to otherwise.
“We reiterate it is wrong therefore to examine the adequacy of the evidence only from the perspective of whether the respondent proved environmental exposure,” the full bench of the NSWIRC made clear.
Drug testing is not foolproof
And in its concluding remarks on the full findings of the case, the NSWIRC considered the evidence given by Dr Fu during the original hearing. The doctor asserted that the illicit drugs found in the hair sample did not suggest ingestion, as environmental contamination could not be ruled out.
“I am of the opinion that environmental contamination is the most likely cause of the hair testing results of Mr Zisopoulos,” Dr Fu said, adding that “hair test results should only be used” as complementary evidence to support other drug testing due to potential external contamination.
Indeed, Dr Fu further explained that the US Department of Justice has specifically stated that a positive result from hair testing cannot be used as an indication of a drug having been taken, unless there is a trace that’s unique to the substance having been ingested.
When the concentration of the drug sample is as low as it was in Zisopoulos’ case, there should a particular type of trace that wasn’t present in his results, so, in my opinion,” Dr Fu said, “the available information does not support the allegation of consumption” of MDMA or ice.
And on 4 October this year, the full bench of the NSW Industrial Relations Commission – Chief Commissioner Peter Kite, Commissioner John Stanton and Acting Magistrate Robert Abood – ruled that the appeal against sergeant Zisopoulos’ reinstatement to the NSW Police Force be dismissed.