$32K pay-out over employee drug test

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A failed drug test doesn’t necessarily warrant dismissal – that’s the warning to employers after one Kiwi company was fined more than $32,000 for its hasty approach.

Envirowaste suspended employee Gary McLeod from his job after a random drug test revealed traces of THC, the main psychoactive substance in cannabis, in in his system – but the former rubbish truck driver questioned the allegations.

Christchurch-based McLeod said he’d been at a party on the weekend where other people were smoking cannabis but claimed he never participated and suggested passive inhalation as a possible cause.

“He stated that as far as he could remember he did not smoke any drugs at the party and his wife, who was at the party with him, did not recall seeing him smoking any drugs,” explained member of the authority Peter van Keulen.

After an initial disciplinary meeting, McLeod was suspended without pay – his lawyer, Linda Ryder, requested a copy of the result but was unsuccessful in her attempt. McLeod later went to his doctor for another test, which came back negative.

Despite the result, Envirowaste declined to let McLeod take another official test and dismissed him following a second disciplinary meeting on the grounds that he has failed a drug test and was under the influence of drugs while at work.

The Employment Relations Authority, however, found flaws in the waste disposal company’s approach.

“Envirowaste did not investigate any of the matters Mr McLeod raised by way of explanation and mitigation,” criticised van Keulen.
“It could quite easily have spoken to Mr McLeod’s wife or other family members who were at the party to determine if he was really so intoxicated he might have memory loss of that evening or whether they saw him smoke cannabis,” he added.

"Envirowaste could have determined (as Mr McLeod did) the likelihood of Mr McLeod being a habitual user or whether this was a one-off event by having an expert compare the level of THC in the first test against a subsequent test,” he continued.

Van Keulen also noted that the company had blurred two allegations when disciplining McLeod – that he was under the influence of drugs while at work and that he had failed a drug test.

In fact, expert witnesses testified that it would McLeod would not have been impaired by the drug while at work, given the readings of the test result.

“It is clear that Envirowaste did not consider the explanations Mr McLeod offered but dismissed them as it concluded he was not being truthful,” said van Keulen.

Eventually, he agreed that McLeod had been unfairly dismisses and disadvantaged in his employment – van Keulen then ordered Envirowaste to pay $21,306 in lost wages and $11,000 in compensation for the hurt and humiliation caused.

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