No compo after drug test refusal

WILLIAM MACE
Last updated 12:49 03/04/2013

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A geothermal technician who was stood down from his job at Mighty River Power's (MRP) Kawerau power station for refusing to undergo a random drug test will not be compensated for his "injured feelings".

Dean Cowell was suspended from work on August 31, only a week after MRP emailed staff about an amendment to the company's drug and alcohol testing policy allowing testing on a random basis.

The Employment Relations Authority rejected union claims this move amounted to a change of the union-aligned employee's collective agreement.

Employment law expert Max Whitehead said the decision reinforced employers' right to undertake random testing as a deterrent - something which unions had been opposed to for more than a decade.

But Whitehead said the decision left unanswered questions and there was no clear winner out of the case.

Cowell and the Electrical Union had argued the requirement to submit to random drug and alcohol testing was contrary to the collective agreement negotiated with MRP.

They said the "fitness for work" clause in the contract did not include random drug and alcohol testing. If MRP wanted to pursue the tests on the basis of deciding whether a worker was fit for work, they would have to change the contract through the bargaining process.

In her decision, ERA member Rosemary Monaghan said case law made it clear random drug and alcohol testing is not allowed if it is contrary to the terms of an employment agreement.

But she found the contract did not adequately link the random testing of employees with their "fitness to work", meaning the contract did not need to be varied and all union employees could be tested.

However, she also said random testing acted mainly as a deterrent and could not be used as evidence of fitness to work.

If a positive drug test was delivered, the fitness to work clause might be invoked and would then be likely to be tested by the ERA process.

"Because Mr Cowell's circumstances involved a refusal to undergo a drug test required on a random basis, rather than a concern about his fitness to work, I find [the fitness to work clause] does not apply.

"For similar reasons I find it does not apply in a blanket way to prevent MRP from requiring union members to undergo random drug and alcohol testing."

That meant there was no legal ground for Cowell to seek compensation, she said.

"I find as a corollary that the introduction of random drug and alcohol testing does not amount to an attempt to vary [the fitness to work clause] without the applicants agreement."

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However, Monaghan commented that the ERA would have embarked on a "very different investigation" had it been asked to decide whether MRP's random drug and alcohol policy was unlawful based on a lack of consultation.

Whitehead said he would have been frustrated if he had been one of the parties involved in the case because Monaghan had said "you didn't ask me the right question so I'm not going to answer them, the obvious questions".

Most New Zealand employers would not be willing or able to be as cautious with the legal wording of their agreements as the ERA was demanding, he said.

"A lot of people will throw a few words together thinking that it interprets what they mean and you get an interpretation like this, it can be unreasonable.

"Then again, we've got a big union and a big employer here so perhaps [the ERA is] demanding they up their game."

- BusinessDay.co.nz

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