Hooper v Coca-Cola Amatil (New Zealand) Limited The employer decided to drug test 6 employees who it had reasonable cause to suspect of using drugs. The applicant was chosen for testing, consented to the test and admitted using drugs. The test showed applicant was 20 times over the accepted level.
Following a formal disciplinary process the respondent concluded the applicant was guilty of serious misconduct and decided that dismissal was the appropriate sanction. The company's drug and alcohol policy mandated testing where there had been an "incident". Collective Employment Agreement provided for the need for reasonable suspicion before any drug testing took place.
The ERA found there was no requirement for respondent to find any impairment and also the respondent was entitled to assume that consumption occurring during work hours. The ERA further found it was a perfectly reasonable decision for the respondent to make in all the circumstances that a test for drugs was appropriate. In addition the ERA found there was no requirement on the respondent to identify a specific "incident" or impairment if reliance was placed on the reasonable belief drug consumption had taken place. The Authority noted that health and safety obligations of a good and fair employer required it to take all practicable steps to protect all employees from harm. The ERA found that fair and reasonable employer could properly conclude given magnitude of test result the applicant was most likely to be impaired by the heavy and regular use of cannabis and that it was more than likely that the applicant actually using drugs at work and thus there was no unjustified dismissal.
To successfully justifying dismissal relating to employee drug use the employer must ensure that their policies and processes around drug testing and the implications of a positive result are clear and follow a fair process in investigating the matter.
If you are thinking about implementing a drug and alcohol policy or a testing regime, talk to us first - we can help you get your processes right so that you can safely rely on the policy and take disciplinary action should an employee breach it. Please email
info@employers.co.nz or phone 0800 15 8000.