Posted on: Jul 08, 2013

A company’s failure to comply with the provisions of the drug policy covering its employees led to findings that the employees had been unjustifiably dismissed and demonstrates that employers, as much as employees, are bound by work policies.

The company arranged, on separate occasions, for drug tests to be carried out on two employees, the apparent reason for one being “mood swings” and no reason being given for the other, though it arose in relation to an allegation of insubordinate behaviour. Both employees showed significant positive readings for cannabis in urine samples. Despite the readings, both employees were told they were not a health and safety risk and were required (in breach of the employer’s policy) to resume work straightaway. Both employees started rehabilitation courses which were aimed at weaning the employees off drugs rather than attempting a “cold turkey” approach. In spite of the fact that testing in the rehabilitation period was intended for the purpose of comparison, and not as evidence to support dismissal or other disciplinary action, the two employees were required to take second tests a fairly short time after beginning rehabilitation. One employee was drug tested because he injured himself at work, the other employee was accused (two weeks later) of smelling of cannabis at a work function. The employees were dismissed because they were both still showing positive readings for cannabis, though at much lower levels.

In both cases, the Court found, the company had breached its good faith obligations and misled the employees into believing that their first test results did not matter and that provided the employees continued with the rehabilitation (which they had) their employment was not in jeopardy. The Court said the company had effectively imposed a random drug test on the first employee even though there appeared to be a good reason (a loose floor tile) for the employee injuring himself. It said the two-week delay before the cannabis smell allegation was made was unfair.

Urine testing versus saliva testing

The Employment Court also approved a recent Australian decision that an employer’s proposed introduction of urine testing was unfair and unreasonable when saliva testing was readily available. The Australian court said an employer has a legitimate right and obligation to try and eliminate the risk of impairment that could pose a risk to health and safety but it had no right to dictate what drugs or alcohol its employees took in their own time.



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