EMPLOYMENT LAW – CASE LAW REVIEW DAVID BURTON
Follow the policy ... or pay the price David Burton, from Cullen Law, looks at the latest case to confirm that, if a business has policies applying to its employees, it needs to follow them.
M
r Rottier had been employed as a concrete finisher by Concrete Structures for some years up to 2018. In February 2019, he completed a further application for employment with the company. By early May 2019, the company contacted Mr Rottier, offering him a job.
Straightforward induction?
When Mr Rottier started work, he was asked by the factory manager to sign a workplace induction checklist. Because he was already familiar with the company’s documentation, the process was fairly rudimentary. He ticked a number of boxes that confirmed his familiarity with the company’s operations and procedures. A formal induction was not undertaken.
Aggressive manner and expletives
Later that morning, Mr Henderson, the pre-cast manager, was in his office and saw a truck drive onto the 44
HUMAN RESOURCES
SUMMER 2021
company premises. The driver began to talk to Mr Rottier. No approval for coming on-site had been sought. Mr Henderson left his office to tell the occupants that they could not drive into the factory area without following the company’s health and safety procedures. After the driver left, Mr Henderson then talked to Mr Rottier about what he regarded as substandard finishing work on a pre-cast panel. He said he was using the work undertaken on the table before them as an example of a finish that was not up to standard. Mr Rottier understood Mr Henderson was complaining about the work he had undertaken that morning. Mr Rottier believed Mr Henderson addressed him in a degrading and aggressive manner and that his voice became louder as he became angrier. There was also discussion about the driver coming on-site without authority and whether Mr Rottier knew him. Both men became angry and agitated. Mr Henderson noticed that Mr Rottier was sweating. He suspected Mr Rottier was high on drugs. He asked Mr Rottier if he would take a drug test. Mr Rottier replied straight away that there was no point, because he would not pass a drug test. Mr Henderson did not inquire why Mr Rottier said, “there
was no point” to taking a test, because he “would not pass”. He took Mr Rottier’s agitated behaviour, combined with the fact he was saying he would not pass, to mean Mr Rottier was under the influence of drugs. Mr Henderson told Mr Rottier that, if he could not pass a drug test, he could not be at work under the company’s health and safety provisions. Mr Rottier then became even more upset and said he did not need “this <expletive> job anyway” and that it was the company who had offered it. Mr Henderson said, “if you feel that way, you can <expletive> off if you want”. Mr Rottier said he would “<expletive> off then”, and he rounded up his tools and left.
Unjustifiable drug test?
That afternoon, Mr Rottier telephoned Mr Henderson, explaining he was unhappy with what had occurred. Mr Henderson said that Mr Rottier needed to take a drug test and that he could return to work when he had a clean result. Mr Rottier raised a personal grievance for unjustifiable action, bullying, harassment and discrimination. He asserted that a drug test had been unjustifiably initiated.
