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Airline hits eject button on sky-high worker

The Dominion Post 7 August 2009

In September 2006 an employee of one of the airlines operating in New Zealand failed a random drugs test and was dismissed. The Employment Relations Authority ordered that the employee's identity was not to be published. Let's call him Mr X.

Mr X was a warehouse worker for the airlines. His workplace was safety sensitive particularly because of the operation of heavy machinery. In December 2005, after an Employment Court decision, the airline introduced an alcohol and drugs programme requiring all employees to maintain a zero blood-alcohol level and to remain drug-free at all times while at work. As part of the alcohol and drug policy employees in safety sensitive areas, such as Mr X, were subjected to random alcohol and drug testing.

Mr X's drug test revealed a level of cannabis in his system more than 20 times the threshold level for the test. The company said this constituted serious misconduct.

Mr X was referred to an aviation medical officer, the company's chief medical officer and an alcohol and drug counsellor. The counsellor reported that Mr X had a significant chemical dependence problem and predicted that if Mr X abstained only from cannabis, his alcohol use would increase.

Mr X denied he had a problem. He did, however, admit that he had smoked a joint of cannabis about 7pm the night before he was tested and had started work at 4am. He admitted he had used cannabis every night for the previous two years, and off and on during all of his adult life.

The aviation medical officer said Mr X's ability to work safely and effectively in the safety sensitive area was potentially impaired, with a consequent increase in risk of accident. He recommended rehabilitation. Mr X continued to deny that he was a risk. The airline declined to offer Mr X rehabilitation and dismissed him, taking into consideration the fact that Mr X was aware of the policy and the level of risk that he chose to expose the organisation to each day. His lack of appreciation of that risk and decision to continue to use cannabis over a long period of time after the introduction of the policy were also considered.

The Employment Relations Authority accepted that Mr X was guilty of serious misconduct but found the dismissal was unjustified because the airline failed to properly consider rehabilitation over dismissal, which it found to be mandated by the airline company's policies on personnel. The Employment Court took a different approach. The policy stated that a rehabilitation agreement may be established if employment is not terminated following an investigation. Mr X's employment was terminated.

Rehabilitation was not mandatory but discretionary and importantly depended on continuing employment. The Employment Court concluded that the decision to dismiss was fair and reasonable. In particular, the court noted that the airline was entitled to take Mr X's lack of acceptance of risk to workmates and the organisation into consideration.

The issue of drug use in the workplace and its treatment is particularly important. Drug addiction is generally regarded as being an illness. Although an individual must make a conscious decision to take drugs in the early stages, addicts have little choice in the matter.

If drug addiction is an illness, rehabilitation should be offered where possible. However, success depends on willingness to change, and Mr X was unwilling to change.

The Employment Court recognised that acceptance of wrongdoing and willingness to change are important considerations in determining whether rehabilitation is a realistic option. It was not.

Peter Cullen is a partner at Cullen - the Employment Law Firm

Email: peter@cullenlaw.co.nz

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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