A train driver was dismissed after he failed a drug and alcohol test following crashing his train. The test, proved positive for cannabis. Most employers will not have train drivers on their staff but the tests for dismissal will apply to all employees in safety critical roles.

The driver commenced proceedings in the Employment Relations Authority claiming that his dismissal was unjustified. The ERA rejected his claims. The driver appealed the decision to the Employment Court.  

In a recent judgment, the Employment Court has upheld the ERAs decision. The Court held that KiwiRail was entitled to find that the employee’s drug use and his subsequent operation of the train amounted to serious misconduct.

The employee was employed under a multi-employer collective agreement. The agreement contained a Drug and Alcohol Policy which records that rehabilitation is the preferred outcome for employees who fail a random drug test. The policy stated that both KiwiRail and the Union recognise that rehabilitation may not be appropriate in all cases.

The Court found that a fair and reasonable employer could have concluded in this case that rehabilitation was inappropriate. KiwiRail gave consideration as to why the employee should be given another chance but decided that the employee was in a ‘safety critical role’, and had full knowledge of the Drug and Alcohol Policy. From the outset, the employer made it clear to the employee that he had broken their trust and confidence, and that the health and wellness of their passengers and crew was a top priority. KiwiRail's decision to dismiss the employee was therefore justified.