In the case Mr Foster argued that the confirmation test relied on by Modec should not have been taken where there were no grounds for him to have given that test. He also raised the fact that there were doubts about the reliability of several of the test results and that issue had not been sufficiently investigated by Modec.

Modec relied on the fact that it had no control of the procedure that was undertaken by the helicopter operator. It said that Mr Foster had consented to the confirmation test relied on. Modec said that Mr Foster wasn’t disadvantaged because he was aware of its zero tolerance policy to alcohol and the breach occurred in a safety sensitive area, which the heliport was defined as under the policy.

The Employment Relations Authority concluded that Mr Foster’s dismissal was unjustifiable. Although the pre-flight alcohol screening was conducted by the helicopter operator, the Authority concluded the alcohol screening needed to conform to Modec’s policies. The policy contemplated at least one prior initial test being conducted before a confirmation breath alcohol test could be embarked upon and only in circumstances where the initial test showed the threshold limit had been exceeded.

The policy did not specify what the threshold limit was and there was a lack of clarity around which of two possible threshold levels applied, either 0 mgm/L or 100 mcg/L. This led the Authority to say that it was difficult to conclude that a fair and reasonable employer could impose a testing regime with a corresponding sanction of potential dismissal if the breach of its standards occurred, without first ensuring the standard was clear and certain. So it concluded that the grounds required for the next confirmation test (being the ones relied on) weren’t met.

There was also nothing in Modec’s procedure which permitted the helicopter operator to perform a confirmation test. The Authority concluded that Modec could not reasonably rely on the test results to find that Mr Foster had breached its drug and alcohol procedure or the rule relating to driving a vehicle while affected by alcohol.

The Authority looked at the effect of Mr Foster’s consent to the helicopter operator conducting the test that was relied upon and the acknowledgement in the consent document he signed that a positive test result was likely to lead to disciplinary action including dismissal. The finding was the consent had not been given on an informed basis. Also, it could not be construed as providing permission to alter or exceed Modec’s existing procedures. The Authority put some weight on the fact that Mr Foster had not been informed he was not obliged to agree to additional testing and in fact had been informed in the consent document itself that a refusal to agree to the additional testing could be taken into account in any employment investigation or enquiry.

Because the procedure used by the helicopter operator to obtain the confirmation test results did not comply with Modec’s procedure, and the consent that was relied on was not an informed consent, Modec did not have grounds to take disciplinary action.

The Authority said that an employer is expected to act in accordance with its policies and a failure to do so is not the action of a fair and reasonable employer in all the circumstances. The Authority declined Mr Foster’s reinstatement remedy. This was primarily because the owner of the facilities on which Mr Foster performed his role, was not his employer and it had given notice to Modec that because of its own strict policy regarding alcohol, Mr Foster would not be permitted on its property or work sites in any capacity until further notice. Mr Foster ended up being awarded $21,505.13 in lost wages and $14,000 as compensation for distress.

CONCLUSION

The take-out from this case is the importance of having a drug and alcohol policy that is clear in terms of the testing levels that will apply and the procedures that will be followed. The case also shows that a failure to strictly comply with a drug and alcohol policy can invalidate a dismissal even where there is evidence of alcohol or drugs in an employee’s system, but that evidence has not been obtained in accordance with the policy.

If you need help putting in place an effective drug and alcohol policy, or need advice in dealing with issues in this area, please contact us.