All in a day's work: Drug test = dismissal

Photo / Michael Cunningham

You would think it would be a fairly clear cut case: employer has a contractual right to drug test post incident; employee returns a positive drug test and dismissal ensues.

In the eyes of the Employment Relations Authority, it was - Ms Katrina Thomson was dismissed from her employment as a driver for MJD Haulage, having failed a post incident drug test.

Despite its outcome, the case is interesting for a number of reasons:

- Employers will be pleased to see the statements of the Authority Member regarding the process followed by the company (MJD Haulage); finding that the dismissal was unjustified because of the Manager's departure from the principles expressed in the employment agreement would be the sort of pedantic scrutiny that should be avoided;

- The Authority held that there was an element of predetermination in the Manager's handling of the situation. This was hard to avoid given the contractual provisions and the fact that the agreement between MJD Haulage and its client Toll, was such that Toll could advise MJD Haulage that it did not want a particular employee performing work for it, following a positive drug test.

However, that predetermination was balanced by MJD Haulage's willingness to ask Toll to reconsider its position in light of the employee's subsequent negative tests (which the Authority held, indicated that the employer's mind was not closed to the possibility of continued employment, if the circumstances permitted);

- The Authority was satisfied that even with a discrepancy in the ID number given to the drug test, that the drug test was valid; and

- In keeping with a more relaxed approach to process, the Authority held that the failure to advise Ms Thomson of her right to a representative was immaterial as there was nothing that a representative could have done based on her explanation that she had not taken illegal drugs.

As a general rule, an employer is free to enter into an agreement with its clients that where it has employees performing work for the client, the client can direct that a particular employee not perform work for them; either for no reason or for just cause. Indeed, such clauses are common in commercial contracts between parties.

The Employment Relations Authority has previously maintained that a client refusing to allow an employee to continue to work for them is not, in and of itself, grounds for the termination of that employee's employment.

In particular, if the client alleged there was misconduct or serious misconduct, the employer is not entitled to just accept that, and must satisfy itself of that, as a fair and reasonable employer, before reaching any decision to dismiss.

In this case, the Authority accepted that the client was unwilling to have the employee perform work for them, and that this meant that MJD Haulage had no work it could provide for the employee. This is an interesting finding in the context that Ms Thomson was dismissed for failing the drug test; she was not made redundant (on the basis that her position no longer existed).

Ms Thomson argued vigorously that there was an error in the test, that she had not taken any illegal drugs, and that this was supported by the subsequent negative test results she obtained and provided. However the Authority held that in the face of the positive drug test and the information available to it at the time, MJD Haulage was entitled to dismiss.

Do you feel any sympathy for Ms Thomson? In the shoes of the company, would you have dismissed?