Drug testing breach of policy

23:10, Jun 16 2014
Mary-Jane Thomas
Southland Times Work to Rule employment law columnist Mary-Jane Thomas

T his is an interesting case of a knee-jerk reaction by a manager that seems to have got out of control.

Seventy six members of the Engineering Printing and Manufacturing Union who worked at a Carter Holt Harvey sawmill claimed that they were unjustifiably disadvantaged in their employment by being "compelled ... to submit to drug testing in breach of the respondent's drug and alcohol policy".

Two cannabis plants were found growing outside the sawmill building. The site manager directed that all employees be subjected to a "reasonable clause" drug test. He considered the sawmill site was only accessible by staff and was unlikely to be easily accessed by the public. Over the next day or so approximately 190 employees were subject to urine tests.

The union told the manager it considered the testing was in breach of the drug and alcohol policy as it was neither random testing nor testing for reasonable cause.

The site manager said that testing would continue, which it did.

Of all the employees, one employee was found to have a non-negative test. There was no suggestion that he had planted the marijuana plants.


The relevant clause relied upon by the employer was the following:

"Employees may be requested to participate in a medical test where their actions, appearance, behaviour or conduct suggest they may be under the influence of drugs and/or alcohol.. Where an employee refused to undergo a test requested under reasonable cause the refusal shall be treated under the serious misconduct procedures and the appropriate disciplinary procedure applied."

The employer said it was justified in testing the employees because it was "reasonable to assume that whoever planted the marijuana worked at the sawmill". It argued that that employee would have been in breach of his or her responsibility under the operating procedures not to use, sell, supply, transfer or have in their possession, drugs. The argument was that it was reasonable cause to test all employees because the employer had responsibilities to ensure worker safety.

The employer then went on to argue that although the testing was not in strict accordance with its policy and operating procedures it was "motivated by a strong desire to protect its employees and so the testing was justified".

The Employment Relations Authority accepted that the employer had a statutory responsibility to ensure the safety of all its employees but held that no reasonable employer breaches its policy or procedures made with the express purpose of keeping its employees safe. In this case, if the employer was concerned that an employee was, or a number of employees were, impaired it had a clear policy for identifying and testing those employees.

In this case there was no suspicion that any of the 76 employees tested was exhibiting any of the conduct, appearances or behaviour that could have triggered reasonable cause. The testing did not fall within any of the other situations for which the employer had policies and procedures that allowed for drug testing (such as pre- employment, post accident and random testing). The authority concluded that the employer breached its policy and procedures.

The next question was whether employees were unjustifiably disadvantaged by the testing.

The employer argued that because no employee was subject to any disciplinary sanction they could not have been disadvantaged. This argument failed because a material disadvantage or a disciplinary sanction is not required for there to be a disadvantage.

It was further submitted (interestingly) that the employees had no grounds to feel aggrieved and humiliated as they were all asked to submit to a process they could have been required to undertake at any time if randomly chosen for testing.

The authority found that the employees were required to undertake an invasive procedure imposed by their employer outside the conditions of their employment. This was to their disadvantage not only because giving a urine sample in an employment setting is invasive and compromising of an employee's dignity and privacy but particularly because the requirement was not in line with any of their terms and conditions of employment.

The authority sent the parties to mediation to work out the amount of compensation to pay each applicant.

Mary-Jane Thomas is a partner at Preston Russell Law. She is always interested in ideas for articles. Email her at Mary-Jane.Thomas@prlaw.co.nz.

The Southland Times