The parameters of drug and alcohol testing continue to be tested in the courts. The recent case of Sim v Carter Holt Harvey highlights the need for employers to have a drug and alcohol policy that is thorough, robust and clear.
Two cannabis plants were found growing in the grounds of the Eves Valley Sawmill, Carter Holt Harvey’s Nelson mill. The site manager decided that only staff could access the mill, not members of the public, and ordered approximately 190 employees including managers be subject to urine testing. CHH’s policies allowed drug testing of employees but only where there was “reasonable cause” and when an employee’s “actions, appearance, behaviour or conduct suggest that they may be under the influence of drugs and/or alcohol.” One employee, Mr Sim, was found to have a non-negative drug test but there was no suggestion that he had planted the marijuana plants.
76 members of the EPMU, including Mr Sim, brought claims in the Employment Relations Authority for unjustified disadvantage on the basis that they had been “compelled…to submit to drug testing in breach of CHH’s drug and alcohol policy.” CHH argued that the testing was justified in that it was intended to deter drug use and ensure the health and safety of its employees.
The Authority disagreed with CHH, and found that there was no “reasonable cause” as per the policies and that there needed to have been suspicion that an individual employee is affected by drugs or alcohol, as opposed to the entire workforce, before testing could be ordered. The Authority found that CHH’s intention to “send a strong message” to its staff did not enable it to override its own policies and did not justify the testing. The Authority also commented on the testing process used by the NZ Drug Detection Agency where male employees were watched by the NZDDA collector whilst giving the sample and female employees were left alone in the van with door closed. The male employees were seen to have been more disadvantaged than the female employees.
The Authority referred the parties to mediation to attempt to reach agreement on the level of compensation that each employee should receive.