Conducting regular drug tests is a common practice for companies that require their employees to work in dangerous or hazardous environments. Serious problems can arise when these employees refuse to undergo a drug test when called upon. In the case of Baker v EastPack Limited [2023], an employee argued that they were unjustifiably dismissed for refusing to carry out a drug test as instructed to by the company over the course of a few days.
Background
Ms. Ripeka Baker was an employee of EastPack Limited as an Assistant Cool Store Manager and was responsible for operating the zero-oxygen storeroom. Due to the hazardous nature of her position, her employment agreement stated that she must undergo random drug tests. Refusal or avoidance of these drug tests would constitute serious misconduct, which could lead to dismissal. Baker had specific health and safety training related to her position and was one of only 10 people in EastPack’s Opotiki site authorized to enter the storeroom. Other hazards on-site included forklifts, heavy vehicles, and heavy loads.
Course of Events
On Monday the 9th of August, Ms. Baker was selected for random drug testing and was notified of this at 9:25 am. Before becoming aware of her selection, Ms. Baker had seen the drug testing van at her workplace and allegedly driven off to a local café to “have breakfast.” While offsite, Ms. Baker, who had access to the security camera feeds, logged on and viewed the cameras. Just after 10 am, the drug testing van left, and Ms. Baker returned to the worksite at 10:10 am. Upon her return, Ms. Baker was confronted for missing the drug test, and she stated that she would take the test the next time the drug testing van was on site. A disciplinary letter was also sent, reminding Ms. Baker that a “failure to attend the…drug testing” was a serious misconduct.
The next day, Ms. Baker attended work, and the drug detection van arrived in the afternoon. Ms. Baker’s manager asked her to attend the van to complete the drug test, but she refused. After investigation meetings and questioning of Ms. Baker, she was dismissed from her position for serious misconduct in late August.
Discussion
EastPack operated a drug and alcohol policy that outlined how drug and alcohol testing would occur. The policy stated that refusal to undergo an alcohol/drug test or failure to provide a sample within the timeframes set out would be treated as serious misconduct. Additionally, the policy stated that the employee should provide a sample within one hour of being requested.
Ultimately, the Court held that EastPack was justified in dismissing Ms. Baker for serious misconduct and acted in a manner that a fair and reasonable employer would in all circumstances.
The Authority noted that because Ms. Baker was not initially given the required 1-hour period on the first drug testing day, EastPack “faces the difficulty that they did not comply with their own policy”. Further to this, the Authority found that EastPack had “no practice of asking the drug van to wait on any absent staff, rather the opposite, that staff were expected to make themselves available promptly so as not to delay the drug van.” – their practice did not align with their policy. Therefore, the events on this day could not justify Ms. Baker’s dismissal: “EastPack cannot hold Ms. Baker responsible for a breach of policy which it did not allow her to fulfil”.
However, Ms. Barker’s refusal to take the drug test on the following day was a breach of her obligations, amounting to serious misconduct and justifying dismissal. Ms. Baker was reminded of this obligation through both verbal and written communication the day before, and she agreed to it. The Court, therefore, held that Ms. Baker’s refusal to take the drug test the following day was a serious misconduct that warranted the termination of her employment.
Key Takeaway
Employers have the right to require employees in hazardous working conditions to undergo random drug testing if it is outlined in the employment agreement or company policy. Refusal to comply with such testing can be considered serious misconduct, leading to potential dismissal. It is essential for employees to be aware of their obligations and the company’s drug testing policies to avoid ramifications or disciplinary action.
If you or someone you know is facing issues at work, please do not hesitate to get in touch with the Watermark Employment Law team. We are happy to assist you.
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