KEY POINTS:
Hot on the heels of a recent decision upholding the dismissal of an employee for refusing a drug test the Employment Relations Authority has now gone to the other extreme, and said that an employee who tested positive for a Class A drug was unjustifiably dismissed.
In the latest case, Bush v Marlborough Lines Limited, Mr Bush was employed as an arborist who was required to use potentially dangerous machinery. He had previously been warned after turning up to work smelling of alcohol. About a month later, his supervisor noticed that he did not seem to be "with it". A meeting was held and Mr Bush agreed to undertake a drug test, which was arranged through the company's independent health nurse (rather than a registered medical practitioner as required by the employment agreement). The drug test confirmed the presence of an amphetamine-class substance in his system. Mr Bush was subsequently dismissed.
However, it transpired that Mr Bush had been taking Sinutab, a drug containing pseudo-ephedrine hydrochloride, an amphetamine-class substance, to help him get over a heavy cold. His partner had bought this for him from a pharmacy. She attended the disciplinary meeting to explain this, but the employer claimed his level was too high for this to make a difference. It did say though that if there was a second test and it was negative, they would discuss it with a view to giving his job back.
Mr Bush arranged a second test which was negative in all respects. The employer refused to discuss reinstating him. One of the witnesses he called was a doctor, who said that if the dose of pseudo-ephedrine was low, its presence in urine would disappear reasonably quickly, and that someone taking the drug would show signs of dizziness.
The Authority was satisfied that the medication was responsible for the initial positive test, and that the dosage in his system was low. It said the employer ignored the fact that the initial test was merely a screening test, even though the test results contained a statement that they were not suitable for "medico /legal purposes". While it had genuine grounds for concern, it had over-reacted to the test result, and moved to dismiss Mr Bush without considering the other alternatives set out in the employment agreement (such as a rehabilitation programme).
As is often the case, first appearances (here, a positive drug test) can be deceptive. Whether you buy Mr Bush's story or not, the Authority expects employers to investigate fully, and only take into account reliable medical evidence. The failure to do this was Marlborough Lines' undoing.
Greg Cain
Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.
File photo/Jenine Jackson
