Court case where confirmation testing wasn’t completed, 2021

In the previous newsletter email (not posted on the blog) we asked a question for the crowd.

To be fully compliant in a workplace drug testing situation, is it necessary to:

  • send every not-negative drug test result to a laboratory for confirmation testing? or
  • use discretion in some cases to stop the process at the not-negative stage, and take disciplinary action from there?

There were some interesting responses.
Let’s examine the recent court case Edward Remihana v Rigweld Engineering (2020).

The circumstances were:

  • Rigweld Engineering employed Mr Remihana as a rigger. When he was employed, he signed an employment agreement, which had the following clause:
    23.2: […] Accordingly the Employer reserves the right to require you to submit to random testing for non-prescribed drugs, stimulants and alcohol. These tests may be issued by us or by a customer that we work for and may be a requirement of entry on to their work sites.
  • He also completed induction, and attended the regular monthly meetings where the zero-tolerance policy towards drug use was stressed.
  • Mr Remihana was randomly selected for a drug test. He informed his supervisor that he would probably fail the test, due to cannabis use the night before.
  • The test results came back not-negative, as expected. Mr Remihana accepted that he had failed the test.
  • The test wasn’t sent on to the laboratory for confirmatory testing.
  • The disciplinary process went through as normal. Mr Remihana mentioned that a dismissal wouldn’t look good on his record, and was told that a resignation would be accepted instead.
  • Mr Remihana resigned the same day, and later took Rigweld Engineering to court for constructive dismissal.

The following statements from the Employment Relations Authority are interesting:

Was Mr Remihana unjustifiably dismissed by Rigweld?
I find that the impetus for resignation came from Mr Remihana, there was no pressure placed on him to resign and had he not done so Rigweld would have proceeded to dismiss him on the basis of the non-negative drug test as indicated. However before Rigweld dismissed Mr Remihana he chose to resign by email dated 13 November 2020.
I find that […] Mr Remihana was not unjustifiably dismissed with Rigweld.

Was Mr Remihana unjustifiably disadvantaged by Rigweld not having completed the process in terms of AS/NZS 4308:2008?
As observed above, given Mr Remihana’s admission and the subsequent events, I determine that Rigweld acted reasonably and Mr Remihana was not unjustifiably disadvantaged by Rigweld not having completed the process in terms of AS/NZS 4308:2008.

This is interesting!

It suggests that, in some cases, it isn’t necessary to take the process through to laboratory confirmation.

For this case, it was dependent on everything else being done right:

  • Mr Remihana’s admission that he had been smoking cannabis, and acceptance of the test results
  • An investigation meeting was held before any decision to dismiss was made
  • Mr Remihana was given the chance to bring a support person
  • The entire company was bound by the same drug & alcohol testing policy, so going to another job role in the same company wasn’t an option
  • Regular mention was made of the company’s zero-tolerance approach towards drugs & alcohol

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