Drug testing case example: Employer needed “reasonable cause” for drug test

by The FindLaw Team

Hooper v Coca-Cola Amatil (NZ) Ltd (2012) was a successful appeal against an Employment Relations Authority determination that an employee was justifiably dismissed after testing positive for cannabis.

Hooper was asked to take a drug test at work and test came back over 20 times the accepted level for THC-Acid. Under the collective agreement, drug testing was permitted after an incident or accident, or where there was “reasonable cause”. The agreement did not provide for random drug testing.

During the disciplinary meeting (rather than before), the company claimed that the test was for “reasonable cause” based on information from a private investigator who had seen Hooper smoking cannabis, and from an unidentified whistleblower. Hooper was dismissed for serious misconduct for breaching the company's drug and alcohol policy.

The Employment Court observed that the company's managerial prerogative in relation to drug testing was subject to the collective agreement, and the test results could not be relied on in retrospect to validate the testing process if that process was fundamentally flawed due to a lack of reasonable cause to test. The company admitted to the Court that it did not have a reasonable cause to drug test Hooper.

The Court held that a fair and reasonable employer would have made every effort to disclose the thrust of the whistleblower's statement to Hooper prior to the disciplinary meeting so as to provide him with a real opportunity to consider the allegations and respond. Waiting until part way through the disciplinary meeting before telling Hooper about the private investigator and whistleblower was “the type of ambush situation which the good faith provisions in the [Employment Relations Act 2000] and the principles of natural justice are designed to avoid”. The Court concluded that Hooper's dismissal was unjustified. He was entitled to lost wages and $4,000 compensation for hurt feelings.

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