An Auckland concrete company has been ordered to pay more than $20,000 to a former employee who was sacked after using cannabis.
Shane Hadfield worked as a concrete truck driver for Atlas Concrete from early 2016 until he returned a “non-negative” test for cannabis in a random drug test in May 2021.
Hadfield admitted smoking cannabis during the weekend prior to the Monday test, but said Atlas incorrectly concluded he was under the influence of drugs as he was not impaired while at work, the Employment Relations Authority (ERA) heard.
Hadfield claimed he was unjustifiably dismissed and sought lost wages and compensation from Atlas. He also said he was unjustifiably disadvantaged as a result of his suspension after the test.
Atlas argued that, given Hadfield admitted to drug use, the conditions of his employment agreement, the company’s drug and alcohol police and the dangerous nature of his role as a driver, the decision to dismiss him summarily was justified.
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On the day of his test, Hadfield signed a consent form for the procedure and for the results to be shared with his employer.
The test was taken, and the result showed the drug screen for THC – the main psychoactive ingredient in marijuana – required further analysis.
The testing provider contacted Atlas Takapuna depot manager Donovan Walker and advised of the non-negative result.
Walker said Hadfield walked into his office shortly after and said “I f….. up boss, sorry,” going on to say he had smoked cannabis the Saturday before, following an argument with his wife.
Hadfield was offered counselling before being suspended from work. A laboratory test later confirmed a positive result for cannabis.
At an investigation meeting on June 8 Hadfield said he was aware of the company’s drug policy and Walker told him Atlas was likely to consider the situation serious misconduct, and a positive test result to be “under the influence.”
First Union organiser Stephen Hassan told the meeting Hadfield was not a regular cannabis user and using it was uncharacteristic for him.
Given Hadfield had smoked cannabis on the Saturday night and did not attend work until the Monday morning, he would not have been impaired or under the influence of cannabis when he attended work, Hassan said.
He said he explained urine tests were for THC-acid and did not test for impairment or whether a worker was under the influence of cannabis.
Hassan said Walker responded his attitude was “zero tolerance” and Hadfield should not have smoked cannabis even on the weekend.
Atlas told the ERA this discussion never took place.
The day after the meeting, Walker wrote to Hadfield saying his feedback had been considered but the non-negative result was in breach of the company’s drug and alcohol policy.
The letter claimed a clause in his employment agreement said attending work while intoxicated or under the influence of alcohol or non-prescribed drugs was considered serious misconduct and grounds for instant dismissal.
However, the letter incorrectly referred to Hadfield’s earlier individual employment agreement, not the collective agreement which applied at the time of his test.
Walker went on to say the non-negative drug test “meets the definition of attending for work under the influence of non-prescribed drugs.”
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Employment Relations Authority member Sarah Blick said it was important to remember random drug tests were carried out for safety reasons.
“On this basis I have reached the preliminary view that it is appropriate to dismiss you without notice.”
At a follow-up meeting the next day, Hadfield apologised, said he had “stuffed up”, and that it would not happen again if he was given a second chance.
According to Hassan, Walker made it clear that he had terminated the employment of all other workers who had received non-negative drug results.
Atlas told the authority it genuinely considered Hadfield’s explanation including Hassan’s claim that there was no impairment or influence.
On June 11, Atlas sent a letter to Hadfield dismissing him for serious misconduct with immediate effect.
Considering whether Hadfield’s suspension had unfairly disadvantaged him, ERA member Sarah Blick said the collective employment agreement only gave Atlas the right to suspend “on pay.”
Hadfield had been suspended without pay from May 31 until his dismissal and had been financially disadvantaged as a result.
Blick also found Hadfield had a personal grievance for unjustified disadvantage in relation to the suspension and Atlas was incorrect in claiming the issue was not raised in time.
However, despite Hassan’s argument that urine tests did not test impairment or whether a worker was under the influence of cannabis, Blick said it was reasonable for Atlas to rely on the testing as it did.
“It is important not to lose sight about why these tests are undertaken – for safety reasons.”
Blick said a fair and reasonable employer could have concluded Hadfield’s non-negative test result met the definition of “attending work under the influence” of drugs and his dismissal was not substantively unjustified.
Procedurally, however, Atlas had failed in several areas, she said.
Hadfield had not been told he had the right to consult a representative when required to take a drug test, or referred to a rehabilitation programme after returning the non-negative result.
“There is also no evidence Atlas genuinely considered Mr Hadfield’s explanation about his personal circumstances leading to the non-negative test nor his previous good service as an employee when making the decision to dismiss.”
The dismissal letter did not mention whether an offer of rehabilitation or other alternative disciplinary options were considered and Atlas had “closed its mind” to any alternatives in line with its “zero tolerance” approach, Blick said.
“I find Atlas failed to meet the statutory test for justification. Atlas conducted a perfunctory investigation and its findings rested on a labelling of serious misconduct in the [collective agreement] as warranting dismissal.
“In all the circumstances the cumulative procedural defects in the investigation were more than minor and resulted in Mr Hadfield being treated unfairly.”
Atlas Concrete Limited was ordered to pay Hadfield $7310.12 in lost wages and $16,000 in compensation for distress and humiliation.
However, as he admitted the conduct which led to his grievances, the compensation would be reduced by 20%.
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