An employer was ordered by the Employment Court in a recent decision to pay two sacked employees up to five months lost wages plus damages (over $6,000) for unjustified dismissal and personal grievances.  They were fired after each failing a second drugs test, and they had agreed to a tough anti-drugs policy.

How did the employer get this process so wrong?

The employer had implemented a detailed anti-drugs policy.  The problem was that they failed to follow the policy, in that:

1. The policy specified a second failed test after rehabilitation could result in dismissal – but the second tests for both employees were taken during rehabilitation, in breach of the policy.
2. The policy specified that testing could be done “for cause” if two people witnessed the behavior and suspected drug use – only one person saw the incidents, and so the policy was breached.
3. The policy stated that the drug use had to impact on work and safety – one of the employees was smelt with cannabis at a non-work social event when he was off work for an extended period.  It could not have impacted on his work or safety.

These breaches of the policy meant that there was no basis for the second drugs test (both having failed correctly applied first tests), and therefore dismissals based on the second tests were unjustified.

If you need help drafting or implementing drug and alcohol policies call me on (04) 473 6850, or email me at aknowsley@raineycollins.co.nz