The Employment Relations Authority has upheld a personal grievance for unjustified dismissal, and ordered an employer to pay an employee over $35,000, after the employer relied on unclear policies to dismiss him.

The employee worked in a remote area of New Zealand and a third party was contracted to provide transportation to the worksite.

The employer’s policies stated that there was a zero tolerance policy toward having alcohol on the breath in sensitive areas. However the transit provider’s policies defined a positive breath alcohol result in a sensitive area as “over 100 mcg/L”. If the result was positive, written consent of the employee would then be obtained to perform a confirmation test.

The employee drank heavily on Saturday and moderately on Sunday. When he arrived at the transport site on Monday morning, the third party noted that he smelled of alcohol.

The employee was tested and returned a breath alcohol result of 85 mcg/L. The operator then asked the employee sign a consent form and carried out a confirmation test that returned a result of 110 mcg/L.

The employer was informed and a disciplinary investigation was carried out. The outcome was the employer dismissing the employee for serious misconduct.

The Tribunal held that the dismissal was unjustified for several reasons.

Firstly, it held that a fair and reasonable employer could not impose a testing and disciplinary policy if the standards were not clear.

The Tribunal explained that where policies are unclear and impact on an employee’s freedoms, the policies will be interpreted and applied strictly. Therefore, the operator’s policy definition of a positive result applied, and it was not entitled to have performed further tests after the first result was returned as 85 mcg/L. The second result of 110 mcg/L was obtained unlawfully.

Secondly, the Tribunal did not accept that by the employee signing a consent form, despite not having returned a positive result, he consented to the operator not having to adhere to its own policies, and to carrying out the confirmatory test.

Finally, the Tribunal held that since the second test result of 110 mcg/L was obtained unlawfully, the employer could not rely on it to discipline the employee. The test should not have been performed in the first place.

The Tribunal ordered to employer to pay the employee $21,505 in lost wages and $14,000 in compensation for humiliation, loss of dignity and injury to feelings.

Employers must ensure that their workplace policies are clear and understandable to employees. Additionally, it is also important to check that they do not conflict with those of any external service providers.

If there are concerns that your policies are unclear, or may conflict with policies of a service provider you use, it is wise to speak with a professional in the area.

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Alan Knowsley