To establish whether a decision of dismissal in NZ is fair and correct, it is measured against the substantial seriousness (or impact) and the procedure that was followed in coming to such a decision. The legal standard is set out in section 103A(2) of the Employment Relations Act 2000.
“The test is whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred”
Based on the wording of the test above, there may be different disciplinary outcomes for different types of business environments.
In organisations like a railway operator, even a trace of drugs in the employee’s system is sufficient reason for dismissal. This occurred after an employee was involved in a rail accident.
In another case, two employees’ dismissals were found unfair after they have been observed by member of the public smoking something suspicious off site during lunch break. A member of public reported this to the employer and subsequent cannabis tests were positive and employees were dismissed after disciplinary investigation. The Employment Relations Authority found the dismissal was unfair because the employees did not show or present abnormal behaviour at work. Company procedure stipulated that in order to test for drugs and alcohol there must be reasonable cause to do so.
The short answer to a complicated matter is – it depends on a lot of circumstances and variables and that is why it is important that all disciplinary investigations must be thorough and all circumstance, policies and practices must be taken into consideration.
With respect to the recreational drugs, it is not the type or legal status of the drug that are an employment relations or disciplinary issue – it is the effect that the drugs have on the employee and their subsequent behaviour that must be addressed.
Drug use at work or outside the workplace
It is strongly recommended that all companies that are exposed to health and safety risks (manufacturing, transport, courier services, logistics, etc.) have an alcohol and drug abuse and testing policy. This policy should not be too complicated to manage or apply in practice and should be pragmatic. Testing for alcohol and drugs in the workplace may be quite difficult to implement and execute in the absence of a published policy and procedure. It is also important to note that all employees must sign off and agree to the implementation of such a policy and procedure in their employment agreement (collective employment agreement in case of trade union representation). Such a policy will define and regulate the reasons, circumstances and conditions applicable for drug testing to take place. For example the following types of test can be conducted:
- Reasonable or just cause for testing to take place. Examples are the employee or employees exhibiting behaviour consistent of being under the influence. Finding drug paraphernalia and residual drug evidence in or near the work site as well as strong smell of cannabis.
- Testing after a health and safety incident or accident.
- Random testing after due notice was given.
In the absence of a published testing policy and procedure, it would be difficult to enforce testing as described above and the only justification for testing will be the observed symptoms and behaviour of the employee concerned. This can be seen as subjective and ill-informed in the case of a untrained person.