The boundaries of drug and alcohol testing are being tried with recent cases eating away at the Employer's ability to freely drug and alcohol test its Employees.
Sim v Carter Holt Harvey [2014] NZERA Christchurch 81 involved drug testing on the Eves Valley Sawmill site. The sawmill is a safety sensitive site where there are stringent requirements imposed under the Health and Safety in Employment Act 1992.
Two cannabis plants were found growing in the grounds outside the sawmill buildings. The site manager directed that all Employees be subjected to a reasonable cause drug test. Approximately, 190 Employees were subjected to urine tests. The Engineering, Printing and Manufacturing Union objected that the testing was neither random testing nor testing for reasonable cause. There were different procedures for male and female Employees.
Sim was found to have a non-negative drug test. There was no suggestion that he planted the marijuana plants. Carter Holt Harvey argued that there was reasonable cause to test all Employees because there are statutory responsibilities to ensure worker safety. Importantly, the provisions for reasonable cause testing required that the "Employee's appearance, actions, or behaviour suggest they may be affected by drugs/alcohol."
The ERA held that there was no suspicion that any one of the Employees tested was exhibiting any of the conduct, appearances or behaviour required for reasonable cause testing. Reasonable cause testing requires evidence to suspect an individual Employee is affected by drugs before deciding to test. It applies to individual Employees and not to a whole shift or whole workforce.
It was explained that random testing does not imply an accusation of drug use but says that reasonable cause testing has suspicion underlying it. It was held that a fair and reasonable Employer in all the circumstances could not have been so confused by or ignorant of its own employment documentation.
The Union sought damages of $2500 for each Employee tested. This amounted to approximately $200,000. However, the ERA decided to direct the parties to mediation to set the amount of compensation to pay each Employee tested and if an agreement could not be reached, there would be leave to return to the ERA to determine compensation.
Where the relevant employment documentation provides for "reasonable cause" or "post-incident testing", the Employer must demonstrate this existed at the time the test was required. Where there is illegitimate testing, any drugs test which is positive cannot be retrospectively validated.
The caution for Employers is to ensure that any Drug and Alcohol Policy is introduced into the workplace correctly and that the meaning of a current policy is ascertained from its text and in the light of its purpose. This can be particularly significant where disciplinary action as a result of a testing is anticipated.
Employers Assistance's Employment Agreements, Employee’s Handbooks and Drug and Alcohol Policies all set out a very clear procedure to be followed in cases like this. They are easily understood and if Employers follow each step as set out in system provided they should avoid the consequences that befell the Employer in this case.
For more information please refer to our Drug and Alcohol Management System eBook. Employer Support Package members can download this from the Dashboard Library in their Toolbox account on www.EmployersToolbox.co.nz. The eBook is available for purchase by non members at drug-and-alcohol-management-system-product.aspx .
Please call us on 0800 15 8000 for advice.