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Drug test: cause was not reasonable

Drug test: cause was not reasonable
Article Type:
Publication Date:
New Zealand
Judgment Date:

O’Connor v Ballance Agri-Nutrients Ltd [2014] NZERA Auckland 404, 6 October 2014

The company required an employee to undergo a drug test which turned out to be positive. However the company had no basis for requiring the test, according to its own drug and alcohol policy. Instead the managers decided they would follow a 'zero tolerance' approach, even though 'zero tolerance' was not mentioned in the policy, whereas education and training was.

The Employment Relations Authority found the employee had been unjustifiably dismissed.

Mr O’Connor had worked for Ballance for about eight years, and his duties included driving heavy machinery and creating fertiliser mixes. In December 2013, when Mr O’Connor was on his third disciplinary warning, Ballance was contacted by a member of the public who reported that two Ballance employees had been seen smoking marijuana in a car in town. The licence plate of the car matched Mr O’Connor’s car.

The pair were asked to meet with two managers about the matter. At the meeting they were told they would need to undertake a urine test. Mr O’Connor’s test showed a ‘non-negative’ result for cannabinoids and he acknowledged smoking some cannabis at home, but not at work. Mr O’Connor was suspended and then dismissed from his employment after the urine test was verified. He brought a claim for unjustified dismissal before the Employment Relations Authority. Ballance denied the dismissal was unjustified and argued that Mr O’Connor failed a drug test which in itself constituted serious misconduct.

The company had a drug and alcohol policy which provided for ‘reasonable cause’ drug testing to be done if an employee appeared to be acting in a manner suggesting alcohol or drugs “may be impacting on their ability to work effectively and safely”.

The managers had claimed that Mr O’Connor displayed unusual behaviour during their meeting with him; they said he was agitated, did not keep eye contact and was fidgeting. However, the notes of the meeting did not mention any unusual behaviour and it was not raised at the time.

The Authority stated that if the managers were concerned Mr O’Connor was acting in a manner suggesting his use of drugs or alcohol, there was a clear procedure in the company drug and alcohol policy to be followed before a decision could be made to undertake the reasonable cause testing (for example completing a checklist of symptoms or behaviours observed by the supervisor). The procedure was not followed.

The Authority found, on the evidence, that Mr O’Connor had behaved normally in the week before the incident and there was no reason for him to be tested. The Authority therefore determined that Mr O’Connor was not acting in a manner which allowed for a request to undertake a reasonable cause drug test under Ballance’s policy.

Having breached its own policies and procedures by requiring Mr O’Connor to undergo the drug test, Ballance was not able to retrospectively validate the testing process and so the result could not be relied on by Ballance (and so could not constitute serious misconduct).

The Authority therefore determined that Mr O’Connor was unjustifiably dismissed.

Contributed by Sarah McNulty, Fortune Manning, Employment Law Team

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Organisations Mentioned:
Employment Relations Authority
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