Employee who turned up to work with alcohol on breath wins his case in unjustified dismissal
The Employment Relations Authority (ERA) has upheld a personal grievance for unjustified dismissal and ordered an employer to pay an employee over $35,000, after the employer relied on unclear policies to dismiss him.
A Kiwi employer has been ordered to pay after the ERA upheld a personal grievance lodged by an employee that was found to have a blood alcohol level of 110 mcg/L and dismissed from his employment.
The ERA found the employee was unjustifiably dismissed because the employer had relied on unclear policies to dismiss him.
The case
The employee worked in a remote area of New Zealand, so a third party was contracted to provide transportation to the worksite. The third party and the employer both had alcohol policies. However, those policies differed.
Read more: How to handle an alcoholic employee
The employer’s policies stated that there was a zero-tolerance policy toward breath alcohol in sensitive areas, and the transit provider’s policies defined a positive breath alcohol result in a sensitive area as “over 100 mcg/L”. If the result was positive, written consent of the employee would then be obtained to perform a confirmation test.
The employee had partaken in heavy drinking on Saturday and further moderate drinking on Sunday. When the employee arrived at the transit site on Monday, the third party smelled alcohol on the employee’s breath.
Read more: Working long hours leads to ‘risky’ relationship with alcohol
The employee was tested and returned a breath alcohol result of 85 mcg/L. The operator then asked the employee to sign a consent form and carried out a confirmation test that returned a result of 110 mcg/L. The third party informed the employer, who carried out a disciplinary investigation which resulted in the employee’s dismissal for the reason of serious misconduct.
The tribunal held that the dismissal was unjustified for several reasons. Firstly, it held that a fair and reasonable employer could not impose a testing and disciplinary policy if the standards were not clear.
“It’s hard to work out why their [the third party] policy overrides the employer’s policy,” said Alan Knowsley, managing partner at Rainey Collins Lawyers. “But because of the two different policies, it would be confusing for the employee, and he wouldn’t know which one applied. You’ve then got to apply the one most favourable to the employee.”
Therefore, since the operator’s policy definition of a positive result applied, the employer was not entitled to perform further tests after the first result – meaning the second test was unlawful, according to the ERA. Secondly, the tribunal did not accept that by the employee signing a consent form, despite not having returned a positive result, he consented to the operator not having to adhere to its own policies, and to carrying out the confirmatory test.
“Because he didn’t have to sign it, and by signing it he can’t agree to something he wouldn’t have had to agree to,” Knowsley said.
The tribunal found that because the second test result was gained unlawfully, the employer could not use the results to discipline the employee because the test should never have been performed in the first place.
The tribunal ordered the employer to pay the employee $21,505 in lost wages and $14,000 in compensation for humiliation, loss of dignity and injury to feelings.
Knowsley told HRD employers need to “make sure that any policy they have is consistent with any policies that they might be telling their employees they have to follow. If they’re different, then they need to be talking to their suppliers to make those policies consistent, or make it very clear to all their employees that in this instance, you’ve got to follow this policy, and this is the line.”
