Carter Holt Harvey recently came before the Employment Relations Authority in respect of drug testing that it carried out on 190 staff.
The facts of the case were:

  • The employer found 2 cannabis plants growing at one of its saw mill sites.
  • The manager of the site reacted by using a policy that stated the employer had the power to drug test employees where it has cause to suspect drug use.
  • The policy clearly stated that reasonable cause arose where an employee appeared to be impaired or intoxicated.
  • The union advised the employer that it considered the testing illegal, but the employer did it anyway!

“The test results cannot be relied on by the employer to retrospectively validate the testing process if that process was fundamentally flawed through the absence of a prior reasonable cause to test”.

In law, drug test policy is permissible in the workplace in certain circumstances related to safety. In a decision involving Air New Zealand, the Employment Court determined that it was acceptable for an employer to introduce a drugs testing policy in respect of safety sensitive areas. Safety sensitive areas are those areas where, if a person was intoxicated, they could do harm to themselves or others. This is how the Court balanced the need to ensure safety in the workplace with what it noted as intrusive testing.

The Employment Relations Authority examined the policies of the employer, Carter Holt Harvey, in detail in this matter and concluded that they clearly required a person to present with signs of being under the influence. The Authority observed that the employer’s reasoning for testing, was based on the assumption that whoever planted the plants was under the influence. Quite clearly, you don’t have to be impaired by cannabis to plant a cannabis plant. Ironically, it is likely to be a more effective exercise if done whilst sober! The Authority noted that nobody that was tested was showing any signs of impairment or intoxication. It accordingly found the employer to be in breach of its own policies.

The Authority found that the breach of policy was an unjustified disadvantage under the relevant law, and that this entitled the affected employees to a compensation payment. It sent the parties to mediation to negotiate how much the payment to each employee should be. The Authority heard evidence from several employees concerning how testing contributed to humiliation. It accepted evidence that testing, without reasonable suspicion, was demeaning and intrusive. It also noted the effect on the employees of the threat of disciplinary procedures if they failed to submit to the testing.

The Authority discussed with disapproval the email chains from management that suggested the employer wished “to send a strong message to staff”. It commented that sending a strong message was not a justifiable reason to override its policies that required reasonable suspicion of impairment.

Notably, only one employee tested positive in respect of cannabis. The Authority considered Judge Ford’s reasoning in an Employment Court decision involving Coca-Cola, where Judge Ford stated that:

“The test results cannot be relied on by the employer to retrospectively validate the testing process if that process was fundamentally flawed through the absence of a prior reasonable cause to test”

In other words; a test that is compelled in breach of policy cannot use the law to support a disciplinary response.

The lesson is that an employer must strictly adhere to its own drug testing policies or it will face legal consequences. Employees should be aware they are within their rights to refuse drug testing that is not compliant with policy.

In any of the above situations, it is natural to feel stressed and worried about the outcome. We are available on the phone to consult and to assist resolve problems. We are also available to step in to diffuse tense situations.