An employer that attempted to impose “draconian” drug testing requirements upon an employee, that were not recorded in their Employment Agreement, has been ordered by the Employment Relations Authority to pay the employee damages of $13,000 and costs of $10,000 when it upheld their personal grievance claim.

The employer had attempted to impose the drug testing, after it had concerns about the employee’s behaviour, by adding the testing requirements to a new policy.

This cannot be done. The policy must be in place before the events complained about. It is too late to put a policy or amended policy in place after the event. It can only apply to new events and cannot be used to discipline an employee for past actions.

This decision shows the reality of an outcome for employers that fail to follow procedure or breach employee rights, and fail to accept that they did not get it right.

Failing to settle the case has seen the payment to the employees go from $13,000 to $23,000. This does not include the employer’s own costs of legal representation.

If an employer has got the process or decision wrong wise advice from a professional who is experienced in this area can lead to the settlement of a grievance by negotiation or mediation, well before going to Court.

Alan Knowsley
Employment Lawyer