Many employers claim to adopt a 'zero tolerance approach' when it comes to drugs and alcohol in the workplace, often resulting in the termination of employment for employees who return non-negative test results. While this approach may seem straightforward from a business perspective, it can lead to legal complexities and substantial risks.
Case Study Illustration
The recent case, Hadfield v Atlas Concrete Limited [2023] NZERA 470, sheds light on the challenges employers can encounter in this domain. Mr. Hadfield, employed as a concrete truck driver for Atlas Concrete, was dismissed following a positive cannabis test after a random drug test. Mr. Hadfield openly admitted to using cannabis over the weekend before the test, which took place on the subsequent Monday.
Mr. Hadfield argued that Atlas Concrete erred in concluding that he was under the influence of drugs because he showed no impairment while at work. He contended that the company's 'zero tolerance' policy was unjustified under the circumstances. The Employment Relations Authority found several flaws in Atlas Concrete's actions, including:
Labeling behaviour as serious misconduct in an employment agreement does not automatically make it so; statutory justification requirements must still be met.
Atlas Concrete did not adhere to its policy, failing to inform Mr. Hadfield of his right to consult a representative during the test and not offering rehabilitation.
The company did not provide relevant documents and information before the formal meeting to discuss the matter, nor did it specify the nature of the allegation or inform Mr. Hadfield of his right to bring a representative.
Atlas Concrete did not explore alternatives to dismissal, disregarding its own policy due to a strict 'zero tolerance' stance.
The company did not genuinely consider Mr. Hadfield's explanation regarding his personal experiences leading up to the non-negative test.
Although it was conceivable that a fair and reasonable employer might conclude that a non-negative test above the cut-off level indicated being under the influence of drugs while working, the Authority deemed Mr. Hadfield's dismissal to be substantively unjustified. Consequently, Mr. Hadfield was awarded $7,310.12 in lost remuneration, $16,000.00 in compensation for injury to feelings, and legal costs.
Practical Guidelines
Key lessons for employers drawn from this case include:
Avoid making claims about impairment—drug tests can only detect whether an individual exceeds the specified cut-off levels. There is no universally accepted standard for measuring impairment.
Maintain an updated, balanced Drug & Alcohol Policy before conducting workplace testing.
Follow your policy and contractual obligations, carefully reviewing employment agreements and related documents before taking any action.
Adhere to formal meeting protocols when interacting with employees, ensuring they are aware of their rights, the allegations against them, potential outcomes, and providing access to relevant information.
Exercise caution when enforcing a 'zero tolerance approach.' Each case is unique, and employers must consider various obligations and factors before resorting to dismissal. A first offense may necessitate a formal warning and/or rehabilitation instead of immediate dismissal.
Understand the legal risks involved, plan for contingencies, and be prepared to defend your decisions.
By following these guidelines, employers can strike a balance between maintaining workplace safety and complying with legal requirements while avoiding unnecessary legal disputes.
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