Worker claims unjust dismissal after being fired over cannabis test

Case considers employer's procedural issues during investigation

Worker claims unjust dismissal after being fired over cannabis test

The worker, Shane Hadfield, formerly employed as a concrete truck driver, has taken his former employer, Atlas Concrete Limited (Atlas), before the New Zealand Employment Relations Authority following his dismissal.

The employer said his termination was caused by a "non-negative" result in a random drug test, which indicated the presence of cannabis.

Hadfield openly admitted to using cannabis over the weekend before the test, arguing that he was not impaired while on duty. He said that Atlas made an incorrect assumption about his drug influence and asserted that his dismissal was unjustified.

Consequently, he sought compensation for lost wages and other damages from Atlas. Additionally, Hadfield said that he suffered unjustifiable disadvantages due to his suspension following the drug test.

On the other hand, Atlas said the worker's admission of drug use, including their collective employment agreement (CEA), the company's drug and alcohol policy, the nature of the driver's role, and the employer's priority over health and safety, all validate the decision to terminate his employment.

Worker participates in random drug testing

On 31 May 2021, Hadfield started his workday and completed one concrete delivery in his truck without any issues. Upon returning to the yard after the delivery, a service provider's van was present at the workplace.

Hadfield was informed via a radio transmitter call that he had been selected for a drug and alcohol test. He duly consented to the test and the disclosure of its results to his employer by signing the provider's consent form. The test indicated a non-negative result for "THC," requiring further analysis.

Subsequently, the provider notified the depot manager of the non-negative test outcome. Within minutes, Hadfield voluntarily entered the manager's office, saying, "I messed up, boss, sorry."

He told him about an argument with his wife the previous Saturday, his attendance at a party where he consumed alcohol and used cannabis, and waking up on a park bench in Sandringham, describing the situation as "not good."

The manager noted Hadfield appeared anxious, as if realizing he had been apprehended, and mentioned, "I've already been done," alluding to a past drug-related issue with a previous employer.

Hadfield then asked, "Is that me in trouble now?" or similar words, to which the manager allegedly responded, "Pretty much, Shane."

The worker's suspension and laboratory results

According to records, following this conversation, Hadfield was suspended. Additionally, the manager mentioned the availability of counseling through Atlas, which the worker declined. Subsequently, he left the workplace.

Furthermore, the laboratory testing of Hadfield's sample subsequently confirmed a positive cannabis test result for THC-COOH, registering 97ng/ml of cannabis in his system, which exceeded the screen's "cut off" threshold of 15 ng/ml of cannabis.

‘A warning would not do’

Atlas told the Authority that it genuinely considered Hadfield's explanation, including his claim that there was no impairment or influence.

It said it acknowledged that Hadfield was “regretful, admitted smoking cannabis and that he wanted another chance.”

It also referred to Hadfield, having previously advised he had been dismissed by another employer for a drug issue.

The employer said, “it was, therefore, not Hadfield’s first time with a deliberate use of drugs, and a warning would not do.”

Procedural defects in the employer’s investigation

Atlas’ letters to Hadfield were "deficient." "For example, in its first letter to Hadfield on 3 June 2021, Atlas failed to provide him with documents relevant to the meeting (such as the CEA and the 2020 policy)," it said.

"The letter also did not say Hadfield could bring a representative, refer to any allegations of misconduct or serious misconduct, or Atlas’ view that Hadfield may have been under the influence of drugs in the workplace in breach of the CEA. Finally, it failed to advise of the possible disciplinary consequences in relation to the non-negative test."

After consideration, the Authority said, "Atlas failed to meet the statutory test for justification."

"Atlas conducted a perfunctory investigation, and its findings rested on a labelling of serious misconduct in the CEA as warranting dismissal."

"In all the circumstances, the cumulative procedural defects in the investigation were more than minor and resulted in Hadfield being treated unfairly."

Thus, it said his dismissal was unjustified. "Hadfield’s was both unjustifiably disadvantaged in relation to his suspension and unjustifiably dismissed on procedural grounds, he is entitled to a consideration of remedies," it ruled.

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