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.

Mr 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 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.

Policies at play

Three employment-related documents were potentially relevant to the request for drug testing by the company. The first of these was Mr Rottier’s application for employment. In that application, Mr Rottier agreed to undergo drug and alcohol testing prior to employment, and he agreed to undertake periodic random drug and alcohol testing.

The second document was Mr Rottier’s employment agreement. It contained a provision that where the employer had reasonable grounds for suspecting the employee is under the influence of illegal drugs while at work, then the employer may require the employee to undergo a drug test.

The third document was a drug and alcohol policy. It contained provisions relating to pre-employment testing, random drug testing, accident or incident testing and ‘just cause’ testing. In the case of ‘just cause’, the manager would be informed, and the employee would then be interviewed to determine whether testing was required.

‘Fair and reasonable’

Mr Rottier’s induction was brief. No express reference was made to the drug and alcohol policy. It was assumed that, because Mr Rottier had worked for the company for several years previously, he would be familiar with its policies.

The Employment Court reiterated that a fair and reasonable employer is expected to comply with its own policies and procedures.

The drug and alcohol policy contained a requirement that there needed to be an observation of behaviour causing concern that the individual would be a potential or actual safety hazard to himself due to the effects or after-effects of drugs and/or alcohol. The policy referred to behaviour consistent with an immediate inability to perform work. It also indicated that the individual was to be interviewed to determine whether testing was required.

Contrary to the terms of the ‘just cause’ requirements of the policy, Mr Rottier was not ‘interviewed’ to determine whether testing was required. The Court found that there was a knee-jerk response to a short but heated argument resulting in Mr Rottier being sent away from the workplace to have a drug test when the need and justification for doing so had not been investigated adequately.

The Court found that Mr Rottier had been unjustifiably dismissed and awarded Mr Rottier $10,800 for compensation for humiliation, loss of dignity and injury to feelings and of $13,773.60 for lost wages (both sums having been reduced by 10 per cent for Mr Rottier’s contributory conduct).

David Burton is the Director of Cullen – The Employment Law Firm. David has over 30 years of employment law experience in New Zealand and overseas. His expertise is recognised by his peers.

For six years, he was appointed to the Employment Law Committee of the New Zealand Law Society. Before that, he served on the Workplace Relations and Employment Law Sub-committee of the Law Institute of Victoria, Australia.