Drugs, dangerous equipment and process

 

If an employee reports for work ready to operate dangerous equipment – then tests positive on a random drug test, you’d be on safe grounds dismissing for serious misconduct, right? 

Not so simple.     

Correct process is essential regardless of the facts – and employers who do not pay close attention to this will struggle to defend their actions under the gaze of the Employment Relations Authority (ERA). 

In a recent case, the ERA determined that Ursula Te Huia was unjustifiably dismissed by South Pacific Meats Limited (SPM) following a positive drug test result. 

It seems that Ms Te Huia had been employed as a meat worker by SPM at its Awarua plant for five years – and that she was also a site union delegate.  She had a poor record of absenteeism, although Ms Te Huia had recently succeeded in having this wiped by SPM leaving her with a clean attendance slate.  SPM conducted a random drug test of their meat workers – and in some cases at their discretion, they offered a rehabilitation programme to those returning a positive result. 

Ms Te Huia was one of those not offered rehabilitation – although her result was lower than some of those who were offered rehabilitation.  At her disciplinary meeting, Ms Te Huia said she had only smoked cannabis and taken the drug test in her role as union delegate to prove that the results were unfair.  Despite this explanation, SPM dismissed Ms Huia.

Convinced that her explanation was reasonable and that she had been treated unfairly, Ms Huia claimed unjustified dismissal – and the ERA agreed.

 

The ERA found a number of flaws in the process followed by SPM in dismissing Ms Te Huia:

• SPM had already decided that Ms Huia wold not be offered rehabilitation before she had attended the disciplinary meeting;
• A factor in this decision was Ms Te Huia’s record of absenteeism.  This was unfair because Ms Te Huia had earlier negotiated a clean slate of her record of absence;
• Even though Ms Te Huia had broken the law by consuming cannabis, it was unfair that she was dismissed when some others who returned a lower score had been offered rehabilitation and kept their jobs.

 

The ERA ordered SPM to pay Ms Te Huia $5,100 for loss of wages and an additional $5,000 as compensation for the humiliation of being dismissed.

We have no way of knowing whether SPM considered this to be a bargain price to rid themselves of an employee they may have considered troublesome.  But we do know that if employers wish to defend themselves successfully at the ERA, they must be seen to treat their employees consistently – and to give them genuine opportunity to respond to any allegations put to them before any decision to dismiss.