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Don't dive into drug testing staff

11 July 2014


Drug testing in the workplace is a sensitive issue that is often difficult for employers to navigate. Drug testing will generally be acceptable in a safety-sensitive workplace but even then it can cause angst between the employer and employees. However, as shown in a recent case concerning Carter Holt Harvey, it is imperative that employers adhere to applicable policies and procedures.

On 7 March 2013, two cannabis plants were found growing on the Eves Valley Sawmill grounds.

Carter Holt Harvey and the Eves Valley Sawmill had policies in place that permitted drug testing of employees but only in certain limited circumstances. These circumstances included when there is ‘reasonable cause’ and in particular, when an employee’s “actions, appearance, behaviour or conduct suggest that they may be under the influence of drugs and/or alcohol”.

The site manager considered that the sawmill was only accessible by staff and not the public. As a result, he ordered that 190 employees including managers be subjected to ‘reasonable cause’ drug tests. The testing was carried out by the New Zealand Drug Detection Agency.

The Engineering Printing and Manufacturing Union (‘EPMU’) became aware of the testing and promptly sought to intervene on behalf of its members. The EPMU argued that there was no reasonable cause for the testing on which Carter Holt Harvey could rely. The Employer, however, disagreed and the testing proceeded.

As a result of the testing, one employee was found to have a non-negative test. However there was no suggestion that he had planted the marijuana plants.

Subsequently, 76 members of the EPMU, including the employee who failed the test, brought claims in the Employment Relations Authority that they had been unjustifiably disadvantaged. Specifically, they claimed that the disadvantage was as a result of them being “compelled ... to submit to drug testing in breach of Carter Holt Harvey’s drug and alcohol policy.”

Carter Holt Harvey argued that it had reasonable cause for the testing. It also claimed that it was committed to ensuring the health and safety of its employees and that the testing was justified as it was intended to deter drug use.

Unfortunately for Carter Holt Harvey, the Authority found that the reasonable cause testing provided for in the policies required evidence to suspect an individual employee, as opposed to the workforce generally, is affected by drugs before testing could be ordered. In this case, there wasn’t ‘reasonable cause’ as covered in the policies.

The Authority also did not accept that wanting to send a strong message, while in line with Carter Holt Harvey’s desire to uphold strong health and safety standards, allowed it to breach binding policies. The employees’ claim that they were unjustifiably disadvantaged was therefore successful. The parties were directed to attempt to reach agreement on an appropriate level of compensation that the affected employees should receive.

Drug testing has its place and employers may need to call on it from time to time.

However the key, like in any area of employment law, is that employers take heed of their policies and play by the rules they have set.

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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