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Drugs v alcohol: who should be dismissed?

16 April 2015


The Employment Relations Authority has upheld a decision to dismiss an employee for failure to attend alcohol rehabilitation counselling.

However, in a similar scenario where an employee tested positive for cannabis, the Authority ordered interim reinstatement.

This apparent contradiction can strike readers as perverse, especially as drugs are often perceived as more morally condemnable than alcohol, but the disparity between these cases highlights the need for employers to follow a fair and reasonable process for dismissal.

Callard v Wellington City Transport Ltd

Mr Callard was a bus driver for Wellington City Transport Ltd. Mr Callard was placed on an ‘Attendance Plan’ after being absent on 31 days over a 12 month period. He continued to be absent on certain days, without notifying his employer, and upon his return to work his supervisor could smell alcohol on him.

Mr Callard consented to a drug and alcohol test which returned positive.

The employer held a disciplinary meeting and informed Mr Callard that he would receive a final written warning, that he needed to improve his attendance at work, and that his continued employment would be dependent on him successfully completing alcohol rehabilitation counselling.

Mr Callard attended only four of the seven scheduled counselling appointments and was discharged from the programme. The employer put Mr Callard on notice that this failure amounted to potentially serious misconduct and the matter would be investigated.

As a final written warning had already been issued, the employer concluded that it no longer had trust and confidence in its employee and that dismissal was the only appropriate action.

Mr Callard challenged the decision but the Employment Relations Authority concluded that due to the importance of reliability and safety in the transport industry, the employer’s decision was fair and reasonable in all the circumstances.

Bennett v Hutt City Council

Mr Bennet was the Operations Manager of a council pool in Lower Hutt. In December 2014 the Hutt City Council informed Mr Bennett they had received reports of possible drug use by Huia Pool staff. The Council commissioned an independent fact-finding employment investigation and during the course of the investigation, Mr Bennett admitted that he smoked cannabis at home but denied he did so at work.

Mr Bennett’s drug testing showed a positive reading for cannabis. Mr Bennett was issued with a final written warning and requested to undergo a drug and alcohol rehabilitation programme, which would require him to take three months of unpaid leave. Upon completion of the programme Mr Bennett would be allowed to return to work but as a full-time lifeguard rather than his previous position of manager.

After five weeks of negotiation and continued objection by Mr Bennett to the Council’s proposal, his employment was terminated.

Mr Bennett applied to the Employment Relations Authority for interim reinstatement, which was granted. It was ordered that Mr Bennett be reinstated immediately and remain employed until his claim for unjustified dismissal is heard by the Authority in June.  Mr Bennett is to undertake alternative duties and a rehabilitation programme but be paid the salary that an operations manager would receive.

The Authority said it was strongly arguable that the drug test failed to meet the Council’s own policy on reasonable cause as there was no evidence that Mr Bennett suffered from impairment at work.

Why?

Whilst at first glance the processes undertaken by the two employers may appear very similar, in reality they were very different. Mr Callard’s employer, Wellington City Transport Ltd, made an attendance plan, administered drug and alcohol screening, had a disciplinary meeting, gave a final written warning, had a meeting with Mr Callard and a support person, wrote a letter to Mr Callard, held another meeting, had a meeting with Mr Callard’s manager’s manager, and then made the decision to dismiss Mr Callard on the basis of lost trust and confidence.

In comparison, Mr Bennett’s employer, the Hutt City Council, wrote a letter to Mr Bennett informing him of the reports of drug use, wrote a letter to Mr Bennett requesting that he undergo drug testing, held a disciplinary meeting, gave Mr Bennett a letter stating that the behaviour was deemed serious misconduct and they would be justified in terminating employment summarily, and then after five weeks of negotiations, dismissed Mr Bennett.

Although the Authority decision in Bennett only considered interim reinstatement, the short and inadequate nature of the Council’s process means the Authority is likely to decide that the process followed for dismissal was not fair and reasonable in all the circumstances.

The differences between the outcome of these cases provides a valuable lesson that where employers follow a fair and reasonable process to put employees on notice of their concerns, provide opportunities for employees to respond, and then make the decision, taking into account all the circumstances, dismissal will be justified and the employer protected.

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

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