A case just decided in the Employment Relations Authority which involved an alcohol affected employee highlights the importance not only of having a clear workplace Drug and Alcohol policy, but also strictly following the required procedure when testing for alcohol or drugs.
The case of Foster v Modec involved the dismissal of Mr. Foster for breaching Modec’s policies following a series of breath alcohol tests that were administered in connection with his employment as a Deck Operator on facilities located offshore in the Maari oilfield off Tarinaki.
Various policies, including a Workplace Drug and Alcohol policy, formed part of Mr Foster’s terms and conditions of employment. Under the policy, employees could be required to undergo testing for prohibited substances before transferring to offshore facilities. The testing was undertaken by the entity that operated the helicopter used for transporting workers to the offshore facilities. An initial breath test detected alcohol, which resulted in Mr Foster undertaking a first screening test. This recorded a reading of 80 mcg/L (micrograms per litre) of breath. Under the helicopter operator’s procedure this result would not prohibit passengers from boarding the helicopter.
The person undertaking the test detected a strong smell of alcohol on Mr Foster’s breath and he was requested to take another test. He gave written consent for a confirmation test to be undertaken. Initially the breathalyser that was used gave an “error” message. It was turned off and then back on again at which point it recorded a reading of 110 mcg/L. A further test was undertaken using a different machine and that also reflected a level of 110 mcg/L.
A short time later yet another test was undertaken. This recorded Mr Foster’s breath alcohol content at 70 mcg/L. At this point Mr Foster’s evidence was that he was told to suit up in preparation for travel. He had been led to believe that the threshold for a positive alcohol test was 100 mcg/litre.
Shortly after that, Mr Foster was informed that he was not permitted to board the flight and he was told by Modec’s country operations manager that the mobile testing unit of TDDA, an independent testing agency, would be arriving soon to undertake tests. That agency performed an initial test resulting in a reading of 20 mcg/L, followed approximately 30 minutes later by a confirmation test recording a “negative” result. In spite of this, Mr Foster was directed not to fly to the Maari facility.
Modec conducted a number of meetings with Mr Foster as part of an employment investigation and disciplinary process. In the course of those investigations, Mr Foster admitted that he had consumed alcohol on the weekend preceding the testing.
Understandably Mr Foster queried why his breath alcohol results had risen during the testing process, which had been conducted over a relatively short period. On enquiry with TDDA, Modec had been told that these fluctuations were not unusual and would be reflective of the metabolising of the alcohol in Mr Foster’s system. Mr Foster also asked why the independent testing agency’s results were not considered definitive.
In the end Modec dismissed Mr Foster relying on its zero tolerance policy towards alcohol and the confirmation tests taken by the helicopter operator of 110mcg/L. Modec also relied on breach of its rules relating to driving while being “under the influence of alcohol”. This was in reference to Mr Foster’s travel from home to the heliport that day.