Ex-Lyttelton port worker loses wrongful dismissal claim after failing drug test
A Lyttelton port worker has lost a wrongful dismissal claim after failing a second drug test, the second time while consuming a small amount of his wife’s medicinal cannabis.
The worker, who was not named in the Employment Relations Authority decision, was working as a general employee at Lyttelton Port Company (LPC) when he failed a drug test in October 2020 and was licensed.
He told the authority that the LPC policy was punitive against people who used cannabis, rather than an assessment of the risk of intoxication or work impairment.
He claimed that the company had failed in its general duty of good faith owed to it and that the failure of the drug test did not justify his dismissal. The port operator denied any wrongdoing during the test and how it handled it.
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The man had previously failed a random drug test in September 2019 after smoking cannabis.
He was placed in a rehab program which meant he would be retested over a 24 month period and could be summarily fired if he failed another drug or alcohol test.
In October 2020, he was tested again and returned a positive result for THC of 60 micrograms per liter of blood, against the acceptable level of 15 micrograms.
He said he ate a small amount of edible cannabis, which was intended for his wife who suffered from chronic pain. She was worried she was having an adverse reaction, so he tested it and didn’t feel impaired, the authority heard.
The man’s attorney said there was no evidence he was impaired on the job and that LPC had no right to dictate what he did off work.
In response, LPC said whether he was drunk or not was not the issue, he had violated company policy. He had been employed in a high-risk work environment and had been required to report “in good shape and free from the influence of narcotics”.
He was fired on November 5, 2020.
Peter van Keulen, a member of the Employment Relations Authority, in a ruling released on Monday concluded that LPC had followed a fair process and that the man’s dismissal was justified.
The man’s attorney, Ashleigh Fechney, said he received a prescription for medical cannabis about six months after his dismissal, but that may not have changed the outcome.
“It’s disappointing given that our perspective on cannabis is changing, but we thought it was probably a matter that would have to be taken to the labor court to change,” she said.
His client was not currently considering taking the case to the labor court.
With medical cannabis now legal, the same rule should apply to people who used it legally and illegally and current workplace drug tests were not able to detect all drugs, said Fechney.
“People who use medical cannabis at their own pace and are not impaired could be fired because we use these archaic testing processes.
“In my opinion, companies will not invest in new testing procedures unless they are required by law to do so.”
Labor attorney Michael O’Brien said prescription drugs are generally excluded from drug policies.
“Like any medicine, if [medicinal cannabis] has an impact on someone’s ability, with some drugs that you’re not supposed to drive, there are issues that arise from that.
Employees had an obligation to disclose to their employers if they were potentially affected by anything like drugs.
“A lot of times the problem could be not having had an open discussion,” he said.
“It’s not that you can be fired for needing to take medical cannabis if it’s part of your treatment plan, but it’s how it interfaces with the role – is it a role to high risk, could it impact your ability to drive?”
Employers cannot discriminate against someone because of their disability, which can apply to health issues.
But if there was a health and safety element, such as working near heavy machinery, and a likelihood of impaired judgment, then an employee’s use of medical cannabis would be “a reality to consider.”
“It’s a hard line to walk, and there probably needs to be a discussion about it guided by medical input because I think employers will cling to the sense of ‘cannabis equals drug equals bad equals has to fire them,'” O’Brien said. .