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The PSA legal column

Legal Column WebPSA member Mat Bennet was recently reinstated on an interim basis by the Employment Relations Authority to his job as an Operations Manager at the Huia Pool after the Hutt City Council dismissed him after he failed a drug test.

Background

The Council responded to reports of drug use by staff at the Huia Pool by commissioning an independent fact-finding employment investigation. They asked Mat to meet with the investigator as soon as reasonably convenient.  During this meeting, Mat admitted that he occasionally smoked cannabis at home but said that he never smoked at work.

The Drug Test

The Council said that because Mat admitted smoking cannabis, there was the potential for impairment from recreational cannabis use. They asked him to undertake a drug and alcohol test. Mat agreed and undertook the test.  The result was non-negative and subsequently verified as a positive reading for cannabis.

The Disciplinary process

The Council required Mat to attend a formal disciplinary meeting with his employer and advised him that he may be dismissed. Rather than dismissing Mat, the Council proposed an alternative outcome.  Mat would have received a final written warning for serious misconduct and agreed to undertake a Drug and Alcohol programme over three months on unpaid leave.  While some discussions took place between Mat and the Council, this was not agreed to and the Council dismissed him on 3 March 2015.

The Employment Relations Authority Decision

The PSA supported Mat to seek interim reinstatement from the Employment Relations Authority. Counsel for Mat argued that the Council did not have reasonable cause to ask him for a drug test.   
The Council’s Drug and Alcohol Policy includes 26 examples of physical symptoms of behavior that may determine whether reasonable grounds for a test exist.  In Mat’s case, there was no evidence presented to suggest that Mat has demonstrated any of the physical symptoms or behaviors that the Council’s policy stated as reasonable grounds for testing. 

The Authority referred to a decision from Chief Judge Colgan of the Employment Court in Parker v Silver Fern Farms Ltd (no1) which stated:

“Employee drug testing regimes impinge significantly upon individual rights and freedoms.  Not only must policies and their applications meet the legal tests of being lawful and reasonable directions to employees, but, where there are contained in policies promulgated by the employer, these should be interpreted and applied strictly.” 

Because Mat was seeking interim reinstatement, the Authority made no finding on whether there was a lawful reasonable cause for requesting the drug test.  The Authority found that it was strongly arguable that the Council asked Mat for a drug test without there being reasonable cause for the test.

At the Authority hearing, Mat offered to commit to a rehabilitation plan at the Authority hearing as well as fortnightly drug tests at his own expense until the Authority resolved the whole personal grievance. Mat also presented evidence at the hearing about the financial impact of the dismissal and about the possibility of losing his house.

In the end, the Employment Relations Authority was persuaded that Mat had an arguable case that he was unjustifiably dismissed and that with the conditions on his return, the overall justice favoured Mat returning to work and ordered this to occur on alternative duties while he completed a rehabilitation plan. The whole decision from the Authority can be read on the PSA website.