Without sounding like a broken record there is no such thing as instant termination. There is no such thing as an action that can result in someone being fired without the proper process being undertaken.
Even once a process is commenced it is not a matter of simply ticking the boxes. A disciplinary investigation is just that – an investigation. It requires the decision maker to investigate. Listen. Follow up explanations given by an employee. Ask questions.
You do not have to have the skills of a Senior Detective in order to undertake a proper investigation but you do need to have a sufficiently open mind to ask what? – why? – when? – how?
Background
Mr M. worked for a company that had a drug testing policy, including random drug testing. On 9 April Mr M. was selected to undertake a random drug test (urine sample). The result was “non negative” and his sample was sent to a laboratory for a confirmatory test.
He was suspended on full pay until the lab returned the confirmatory test. On Friday 10 April the test was returned showing positive for THC which was above the AS/NZS4308:2008 levels.
On 13 April Mr M. was invited to a disciplinary meeting to investigate allegations of him attending work under the influence of drugs or alcohol and to investigate a confirmed positive result following a drugs test. He attended a meeting. He was told about the positive lab test though he was not shown a copy of the test with the amount of THC that was found. By way of explanation Mr M. said he had been to a party, he had been very drunk, he could not remember smoking drugs at the party, and his wife who was at the party with him did not recall seeing him smoking drugs. He queried whether the cannabis might be by way of passive inhalation.
Suspension becomes suspension without pay
Following the meeting Mr M. was sent away to get some legal advice and the employer changed his suspension to suspension without pay based on the positive result.
Mr M. asked for advice and his advisor quite rightly asked for the test result and why Mr M. was now on unpaid suspension.
The HR Manager responded saying that the company did not get that information from the lab and only that the results were above the AS/NZS4308:2008 cut off levels. She claimed that his suspension was in accordance with their drug and alcohol policy. She also said that they needed to meet this week.
Flaws in the process
Not surprisingly Mr M.’s representative responded asking for a copy of all the relevant information including the test results. She also asked what the cut off levels were and how they related to impairment – this is important of course because the allegation was that he was impaired at work.
She also pointed out that there was no reference in the drug and alcohol policy to an employee being suspended without pay should a positive test be returned.
To cut a long story short the employer ended up firing Mr M. because he had received a confirmed positive drugs test.
ERA finds unjustified dismissal
In the ERA it turned out that the employer had failed to apply the drug policy strictly. The failure to do this meant that the decision to dismiss was unjustified. I wrote about a similar case a few weeks ago. The Courts are really clear on this – if employers want to drug test they have to follow their policies to the letter.
Not only did the employer not provide the information sought by Mr M. and his representative, the actual testing turned out to be incorrect because it was carried out improperly.
Employer’s investigation sub-standard
Further, the employer failed to consider the explanation given by Mr M. and had not even spoken to Mr M.’s wife to determine if he was really so intoxicated he might have memory loss of the evening or whether he was seen smoking cannabis. The employer failed to make any enquiries as to the likelihood of Mr M. being under the influence of drugs when he attended work (which of course is the real Health and Safety risk)
The evidence before the ERA was that the levels of impairment from drugs cannot be assessed using a urine sample and that given the level of THC in the test, Mr M. would not have been impaired by cannabis at work.
The employer ended up paying a large amount of money to Mr M. - $11,000.00 compensation and over $20,000.00 lost wages.
