AFFCO were entitled to conduct these random searches for drugs under the collective employment agreement, which Ms M was a party to. The agreement included “rules for personal conduct”, which gave “possession of illicit drugs” on the worksite as an example of an offence “which would normally warrant dismissal”.
AFFCO said that the cannabis found in Ms M’s car amounted to possession of illegal drugs on its premises and it was entitled to dismiss her under its zero tolerance policy. Ms M, on the other hand, thought the dismissal was unjustified because the company did not consider her explanation – that the drugs were put in the car by one of her friends.
The Employment Relations Authority had to decide whether the cannabis found in Ms M’s car following the search amounted to “possession” of drugs as required by the collective agreement and whether a fair and reasonable employer would have dismissed Ms M in the circumstances.
Unfortunately for Ms M, her argument before the Authority was not particularly believable. She had admitted during the search of the car that the tin was hers, and before the dog handler showed her its contents, she admitted that it contained cannabis. Several people had heard this admission and it was concluded by the Authority that she had the requisite knowledge for “possession”.
Ms M was suspended on the day the drugs were found and dismissed following a disciplinary meeting the following day. The Authority found that the decision to dismiss Ms M was one that a fair and reasonable employer would have made in all the circumstances at the time. The Authority referred to the terms of the collective employment agreement, which AFFCO had at all times adhered to.
This case is a good example of a situation in which instant dismissal is justified. So employers, it is possible to dismiss employees if they do something “really bad” – but you must do it in a procedurally fair way and in accordance with the Employment Agreement.
