Drugged up and dropped out (of the workforce)

Stuff.co.nz reports today that The New Zealand Drug Detection Agency (NZDDA) performed 29,315 on-site drug tests in 2010 - over double the 13,179 tests they did in 2009 – and that 9 per cent of all tests were positive. Cannabis is the drug most used, occurring in 70.3 per cent of positive tests around New Zealand.
The reason most employers choose to test their staff is health and safety related. If employees are operating machinery – including vehicles – an impaired performance through drugs or alcohol will greatly increase the chance of accidents. But will a positive result automatically give the employer the right to dismiss?

First, no matter how clear cut the result, the employer must call a disciplinary hearing and follow all the rules in terms of a fair process. A failure to do so will result in a finding of unjustifiable dismissal. The only exception to that is where the employee has signed an employment agreement which contains a valid trial period under sections 67A and 67B of the Employment Relations Act 2000 and notice of dismissal is given within the trial period. (From 1 April 2011 all employers, regardless of size, will be able to offer trial periods in their employment agreements to new staff).

Even if the employee follows a fair process though, a positive test result will not give it the automatic right to dismiss. The employer would have to show that staff knew that the use of non prescription drugs and alcohol could result in dismissal – this would usually be by way of the dissemination to all staff and contractors of a Drug and Alcohol Policy, Disciplinary Procedure or Code or Conduct spelling out that consequence.

In addition, the use of the drug or alcohol must have, potentially at least, some adverse impact on the employee’s employment. Where the employee is in a safety critical job, this would be an easy burden to discharge. Where the employee is desk bound, with no interaction with the public, the burden of proving adverse effect will be a little harder.

Not surprisingly, the extent of the drug use revealed is also relevant. A marginal positive result will not usually give the employer the right to dismiss unless the employee has either been warned before, or company polices state that no drug use will be tolerated.

All in all, the employer has to show a justification for the dismissal. Getting its ducks in a row with a clearly worded, comprehensive policy is an excellent place to start.