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How Workplace Highs cause Workplace Lows
A rather basic expectation of any employment relationship is that employees will arrive at work in a fit state to carry out their jobs. This expectation does, however, elevate to a fundamental requirement where the nature of the work to be performed is such that safety in the workplace could be endangered by a worker under the influence of alcohol or drugs. It is in such occupations that workplace drug testing becomes a serious issue for employers and employees alike.
The Employment Court was recently called upon to consider a difficult question in this area in Nelson v Macmahon Contractors (NZ) Ltd. The case involved an employee of the Martha Mine at Waihi, where work regularly involved such activities as drilling and blasting, and the handling of ore and waste. The relevant employment contract included a drug and alcohol policy, and a disciplinary procedure which made it clear that a refusal to submit to a drug test would constitute serious misconduct that might result in dismissal.
The employee arrived at work to find that, without warning, all employees were being required to provide urine samples. The employee felt that the test was demeaning and constituted an unlawful intrusion: as a result, he refused to provide a sample. The employer responded by suspending him without pay. The employee then brought an action, seeking an injunction to restrain the employer from suspending him. The injunction was sought pending the outcome of a substantive hearing which would determine whether the employer's drug and alcohol policy was harsh and oppressive.
In the event, the Court declined the application for injunction. Whilst it recognised that there was an arguable case that the drug testing provisions in the contract were harsh and oppressive, the balance of convenience in the case favoured the employer - put simply, the Court had reservations that an unfair precedent would be set if the employee were allowed to return to an admittedly dangerous occupation without submitting to a drug test to which his co-workers would have been subjected. The employee was therefore required to make a choice - either submit to the test and return to work, or refuse the test and remain off work until the substantive hearing was held. If the employee chose to submit to the test, and it was later found that the policy was harsh and oppressive, the employee could be compensated by an award of damages.
This case serves to highlight the inherently difficult situation presented by workplace drug testing. On one hand, an employer is obliged to ensure a safe workplace: on the other hand, however, employees are entitled to personal privacy, and may not be subjected to conditions of employment which are harsh and oppressive.
The employer of workers in a dangerous occupation is placed in a very difficult position indeed. It is required, by virtue of the Health and Safety in Employment Act 1992, to take all practicable steps to eliminate hazards in the workplace. An employee under the influence of alcohol or drugs clearly presents a hazard to co-workers and to the workplace as a whole. It is, therefore, reasonable for an employer to take some steps to ensure against a hazard of this type.
From the employee's perspective, however, legitimate personal privacy issues arise. The provisions of the Privacy Act only permit an employer to collect personal information where such is "necessary" for a legal purpose. The position is clear where a workplace accident has occurred (and an investigation must be effected) - in that case, the employer would be on strong grounds in arguing that testing was a necessary part of determining the cause of the accident. In contrast, the position is less certain where the drug testing is pre-emptive. An employee could legitimately argue that the employer has no reasonable basis for requiring testing - particularly where the nature of the testing is such that it might cause embarrassment (such as a urine test where employees must be observed urinating).
One of the ways in which an employer can remove some of the difficulty associated with workplace drug testing is to raise the matter in collective bargaining in an effort to establish a good faith understanding as to how testing will be effected. Even then, however, the position will not be conclusive and, as in any case involving random drug testing, an employer would be well advised to seek legal advice.
