An employment case has raised major questions about workplace drug-testing, with a judge saying they are intrusive and inaccurate.

Leith Hayllar smoked cannabis for 12 years before he and co- worker Andre Matene were drug- tested at Goodtime Food Company in Napier.

The company put them on a rehabilitation programme, which seemed to be working, but they were sacked after failing a second test. Judge Anthony Ford said the men were ambushed by a second test, just weeks into their rehabilitation programme.

Mr Hayllar told the court: "It did not occur to me at all that my employment was at risk, and I thought I was about to be congratulated for doing well at rehabilitation."

Both he and Mr Matene had significantly reduced their cannabis levels from more than 300 nanograms of tetrahydrocannabinol acid per millilitre of urine to less than 70 nanograms. They believed their jobs were safe if they completed the rehabilitation programme.

Judge Ford said the firm misled the men into thinking their test results did not matter, because managing director Phil Pollett waived the policy of standing the workers down after a positive test.

Mr Pollett yesterday acknowledged this mistake cost the firm. He was disappointed in the ruling. "I think it's disgusting that someone can break the law and I have to pay him to do that."

Goodtime had to pay Mr Hayllar three months in lost pay at $640 a week, and Mr Matene five months at $568 a week.

Mr Hayllar said: "I'm happy with the decision, obviously."

Mr Pollett said: "We gave them every opportunity to get themselves right. But they continued to use - our expert said even a heavy user would be clean in 21 days."

The company was now changing its drug policy, taking out the rehabilitation clause. "The reason we lost was because we were trying to help them."

Judge Ford also questioned the accuracy of urine testing, citing other rulings that said employers could not determine whether workers took drugs before work or three days earlier. Employers had no right to dictate what drugs or alcohol employees used in their own time, he said.

He referred to Australian rulings that claimed employers should use saliva testing because it was less intrusive.

But New Zealand Drug Foundation executive director Ross Bell was not a fan of either urine or saliva testing. He said saliva testing was even more flawed.

"The tests themselves don't actually demonstrate a hell of a lot. It's a tool that is misused and illustrates that employers are too lazy to invest in building a better, trusting workplace culture."

He said it was disappointing that the two employees who showed a willingness to break their habit had been punished.

"If someone has an addiction, it's not easy to give up, and quite often people will relapse. We should be supporting people through their journey rather than getting them to pee in a cup."

- © Fairfax NZ News