Ex-port worker loses unfair dismissal claim

A worker at Lyttelton Port has lost a claim of unfair dismissal after failing a second drug test, the second time while using a small amount of his wife’s medicinal cannabis.

The worker, who was not named in the Employment Relations Authority determination, was working as a general hand at Lyttelton Port Company (LPC) when he failed a drug test in October 2020 and was fired.

He told the authority LPC’s policy was punitive against people who used cannabis, rather than an assessment of the risk of intoxication or impairment at work.

He claimed the company breached its overall duty of good faith owed to him, and that the failed drug test did not warrant his dismissal. The port operator denied any wrongdoing over the test and how it dealt with him.

The man had previously failed a random drug test in September 2019 after smoking cannabis. He was placed on a rehabilitation programme that meant he would be tested again over a 24-month period, and could be dismissed without notice if he failed another test for drugs or alcohol.

In October 2020, he was tested again and returned a positive result for THC of 60 micrograms per litre of blood, compared with the acceptable level of 15 micrograms.

He said he had eaten a small amount of edible cannabis, which was for his wife who suffered chronic pain. She was worried she might have an adverse reaction to it so he tested it, and did not feel impaired, the authority heard.

The man’s advocate said there was no proof he was impaired while at work, and LPC did not have the right to dictate what he did outside of work.

In response, LPC said whether he was impaired or not was not the point, he had breached the company’s policy. He had been employed in a high hazard workplace, and was obliged to turn up ‘‘in a fit state and without being under the influence of drugs’’.

He was dismissed on November 5, 2020.

Employment Relations Authority member Peter van Keulen, in a determination published on Monday, found that LPC followed a fair process and the man’s dismissal was justified.

The man’s advocate, Ashleigh Fechney, said he was given a prescription for medicinal cannabis about six months after his dismissal, but that may not have changed the outcome. ‘‘It’s disappointing given that our views towards cannabis are changing, however we did think that this is likely a matter it would need to go to the Employment Court to change.’’

Her client was not currently planning to take the case to the Employment Court.

With medicinal cannabis now legal, the same rule needed to apply to people using it legally and illegally and current workplace drug tests were not able to detect all drugs, Fechney said. ‘‘People using medicinal cannabis in their own time and who aren’t impaired might be dismissed because we use these archaic testing processes. In my view, companies aren’t going to invest in new testing procedures unless the law requires them to.’’

Employment lawyer Michael O’Brien said, speaking generally, prescription medicine was excluded from drug policies. ‘‘Like any medication, if [medicinal cannabis] is impacting someone’s ability, with some medication you’re not supposed to drive, there are issues arising from that.’’

Employees had an obligation to disclose to their employers if they were potentially impacted by something such as medication.

‘‘Often the issue might be not having had the open discussion,’’ he said. ‘‘It’s not that you can be dismissed for needing to take medicinal cannabis if it’s part of your treatment plan, but it’s how it interfaces with the role – is it a high risk role, can it impact your ability to drive?’’

Employers could not discriminate against someone on the grounds of disability, which could apply to health issues. But if there was a health and safety element, such as working around heavy machinery, and a likelihood of impaired judgment, then an employee’s use of medicinal cannabis would be ‘‘a reality to consider’’.