KEY POINTS:
The courts have upheld policies providing for random and "reasonable cause" drug testing of employees in safety-sensitive roles, subject to appropriate procedures being in place. Employees in such roles therefore take a big risk if they refuse to submit to a drug test under the employer's policy.
This has been graphically demonstrated in a new case where an employee of Silver Fern Farms Ltd was sacked for refusing to take a test.
Jonathon Parker worked at the Oringi meat processing plant near Dannevirke for over five years. Because of concerns about drug use, the union and the company management had agreed on a drug testing policy. This was incorporated into employees' terms and conditions. The policy included reasonable cause drug testing, so that an employee could be tested if he or she exhibited behaviour inconsistent with the plant's code of conduct.
Pursuant to this policy, the company carried out a search of employees' vehicles in the car park, on 31 October 2007. It found a small amount of marijuana in Mr Parker's car. He was also seen swallowing something, and drinking the contents of a container, at the same time as his car was being searched.
He was asked to remain on site and meet with management, but he told his union he was "stressed", and left the site (other staff identified in the search remained). Based on what happened with other workers identified in the search, it seems that most likely he would have either been tested (if he did not admit to using the drugs) or asked to under go a drug assessment and given a final warning (if he did admit to it).
After leaving the site, he was on paid sick leave from 1 November to 5 December. On 29 November, he was told the Company was considering issuing him with a final warning, and that he would have to take a "reasonable cause" drug test in order to return to work. He then refused to take the test when the parties met on 7 December.
The company dismissed him, and the Employment Relations Authority upheld the dismissal.
The Authority said that he appeared to be in possession of an illegal drug on company property, and then breached his contractual obligations by refusing to undergo a reasonable cause drug assessment as required by the policy, and instead going home. He then aggravated the situation by refusing to take the test.
Contrary to his claim, he had not been singled out, as two other workers who were in possession of drugs and admitted using them submitted to assessments, were given final warnings and agreed to undertake rehabilitation. A third was tested (with a positive result) and agreed to undertake rehabilitation. It was Mr Parker's own conduct that resulted in the dismissal.
Many people disagree about the need for drug testing in the workplace. However, it looks as though it's here to stay, and this case serves as a warning to employees - if your employer has a drug testing policy, any refusal to undergo testing may get you in more trouble than if you simply submit to it.
Greg Cain
Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.
