|
In the recent case of Maritime Union of New Zealand and Ors v TLNZ Ltd and Anor (ARC34/07), the Court confirmed TLNZ's ability to introduce a drug and alcohol policy into its workplace.
In its decision, the Court gave very helpful guidance to employers in respect of when such policies are likely to be considered reasonable. As a result, the Court's findings are likely to be relevant to many employers, particularly those whose employees are engaged in safety sensitive work.
Air New Zealand case
The first case to fully consider an employer's ability to introduce a drug and alcohol policy, was NZ EPMU v Air New Zealand Ltd [2004] 1 ERNZ 614 (we discussed this case in our April 2004 FYI, which is available on our website). In that case, the full Court established a number of principles in respect of the introduction of drug and alcohol policies:
- Drug and alcohol testing can be the subject of a fair and reasonable employer policy, even if this is not expressly included in employment agreements.
- The statutory and contractual obligations on employers to develop and maintain safe workplaces may permit or indeed even require an employer to promulgate an appropriate drug and alcohol policy.
- Statutory and any relevant contractual consultation principles will apply to the formulation of a drug and alcohol policy.
- Privacy Act 1993 principles will be a useful guideline in determining the reasonableness of a drug and alcohol policy, so far as issues of privacy are concerned.
- Work in 'safety-sensitive' areas will also affect the reasonableness of the policy.
However, the Full Court emphasised in its decision that its findings were specific to the particular circumstances of Air New Zealand and its workforce, and that few other employers in New Zealand operate either on the same scale or in the same specialised field as Air New Zealand. The Court also cautioned that the case should be regarded as specific to the particular methodology of analysis, sample collection procedures and subsequent medical consideration procedures used by Air New Zealand.
MUNZ v TLNZ – Background
TLNZ's employees are primarily engaged in stevedoring work on wharves around New Zealand. TLNZ attempted to introduce a drug and alcohol policy which provided for breath testing for alcohol, and urine testing for drugs. Employees could be tested in a pre-employment setting, or when an accident, incident or near miss occurs, or for 'reasonable cause'.
The Maritime Union of NZ (MUNZ) challenged TLNZ's ability to introduce the Policy on the basis that:
- The introduction of the Policy would breach collective agreements covering members of MUNZ, including consultation obligations; and
- The requirement to participate in the Policy would not amount to a lawful and reasonable instruction in employment with which employees must comply.
MUNZ v TLNZ – Court's Decision
The Court accepted that the work of TLNZ's employees on wharves around NZ is safety sensitive. In this respect, the Court held that there were identifiable similarities between the businesses of TLNZ and Air NZ.
The Court held that having a unilaterally determined drug and alcohol policy, including an appropriate testing methodology, which was introduced after appropriate consultation, is lawful in a safety sensitive workplace for the reasons set out in Air NZ. The Court then considered whether an instruction by TLNZ to its employees to comply with the policy would constitute a lawful and reasonable instruction. One of the key issues raised by MUNZ was that the policy was flawed because it purported to determine whether an employee is impaired by a process of drug testing, which is not a reliable assessment of impairment. The Court accepted that the policy does not allow for any scientific assessment of impairment, but held that it did provide for an assessment for signs of impairment through human observations, appropriate enquiries, and testing for the presence of drugs.
The Court also held that TLNZ had undertaken sufficient consultation with MUNZ and employees, which was evidenced by the length of the consultation (which spanned several years), the number of meetings, the discussions on the object and content of the policy, and the changes TLNZ made to the policy at MUNZ's request. The Court noted that the fact that TLNZ had prepared an initial draft policy which had formed the basis for consultation did not mean that there was a failure to consult.
MUNZ also raised an issue about the use of urine testing to detect drugs. MUNZ's case was that its members would prefer salvia testing, as this (they claimed) was less intrusive, however it would not pick up historical consumption of drugs. The Court held that urine testing was reasonable on the basis that it is governed by a relevant Australia/New Zealand Standard for drug testing (whereas saliva testing is not), and the testing methods provided for in the policy were essentially the same as those which were deemed to be reasonable by the Court in Air NZ. The Court also found that current saliva testing devices are not sensitive enough to reliably and accurately detect cannabis, which is a key drug of concern for TLNZ.
MUNZ also claimed that the policy was not reasonable as it did not have "buy-in" from MUNZ's members. However, the Court accepted TLNZ's reasons for refusing to formulate a separate agreed policy, which would apply only to MUNZ members, on the basis that an employer is entitled to have a consistent policy across all staff, including union and non-union staff.
For these reasons, the Court held that a requirement for employees to participate in the policy will amount to a lawful and reasonable direction in employment with which employees must comply.
As a result, the Court held that the intended introduction of the policy was not in breach of collective and individual employment agreements covering MUNZ employees, including consultation obligations.
Consequences for employers
MUNZ has not appealed the Court's decision. Therefore, employers have the ability to introduce drug and alcohol policies into the workplace without the need for employee and/or union agreement, provided:
- The employer is not bound by its employment agreements to obtain prior agreement;
- The employer undertakes sufficient prior consultation with affected staff and unions; and
- The content of the policy is reasonable - bearing in mind the nature of the work undertaken (including whether it is safety sensitive), the types of testing procedures, whether there is provision for ongoing review of the policy and procedures in light of technological changes, and whether there are sufficient privacy protections.
When can an employer "Cry Halt"?
Dealing with Excessive Absenteeism
Introduction
It is well-established that, in cases where an employee is absent from the workplace for an extended period, as a result of illness or injury, there will come a point where the employer can "fairly cry halt" and bring the employee's employment to an end on the grounds that it can no longer sustain holding the position open. However, it is often more difficult to address a situation where an employee is taking an excessive level of sick leave, but the sick leave is genuine and is taken intermittently.
In a recent determination of the Employment Relations Authority, Bentley v Land Transport New Zealand (unreported, 25 January 2008, Member G J Wood) this issue was considered and ultimately Land Transport New Zealand (LTNZ) was found to have unjustifiably issued a warning for excessive use of sick leave. The Authority ordered LTNZ to pay its customer service representative, Tania Bentley, compensation of $3,000.
The Facts
Ms Bentley is a senior customer service representative working in the Transport Registry Centre of LTNZ. Under the Collective Employment Agreement (CEA) which covers her employment, Ms Bentley is entitled to 9 days paid sick leave a year, which may be accrued from year to year.
The CEA also provides that employees who use all their paid sick leave and then have further absences as a result of sickness or injury will be accepted as being on sick leave without pay.
Between 2001/2002 and 2006/2007, Ms Bentley took an average of 24 sick leave days annually. Reasons for this leave included caring for 2 children of her own and foster children at various times, and her husband’s health problems. The genuineness of these reasons was not disputed by LTNZ.
On 15 November 2005, the Manager of LTNZ's Transport Registry Centre met with Ms Bentley and noted she had had 10 days off on sick leave in past 6 months. In March 2007, Ms Bentley's Manager noted there were still ongoing issues with her level of sick leave. He observed that since September 2006 she had had 11.5 days' absence, bringing the total of her days off work in the previous 10 months to 19 days.
After a meeting and some correspondence on the issue, the Manager issued Ms Bentley with a first written warning. Again, the Manager did not question the genuine nature of the sick leave. He also accepted in evidence that he did not consider that Ms Bentley was abusing her sick leave entitlement.
Authority’s Determination
The issue for the Authority was whether the warning was justified in these circumstances.
The Authority concluded that the warning was unjustified because:
(a) Under the LTNZ sick leave policy, disciplinary meetings are only provided for where there is an allegation of abuse or misuse of sick leave. Ms Bentley was not being accused of abusing or misusing sick leave, but simply taking too much genuine sick leave. There was no misconduct to justify a warning.
(b) While an employer can "fairly cry halt" to a worker's employment if excessive sick leave is taken, a fair and reasonable employer would not have reached this stage (or even a formal warning stage) in Ms Bentley's case. The Authority said the cases where excessive sick leave had justified dismissal have involved significantly more leave than was involved in Ms Bentley's case. (The Authority was particularly influenced by provision in CEA that sick leave in excess of the paid annual amount may be granted, although on an unpaid basis).
(c) LTNZ applied the sick leave policy in a "mechanistic" ("follow the numbers") way.
(d) Ms Bentley had particular reasons for using sick leave in excess of the paid maximum and LTNZ, as a fair and reasonable employer, should have accepted them.
How much sick leave is too much?
The Authority’s determination shows that the question whether an employee has taken excessive sick leave will be a matter of fact and degree in every case. The wording of the CEA was important here, and employers should review their sick leave policies to ensure they provide sufficient protection and flexibility. Rigid adherence to a company policy without considering the particular circumstances of each employee is likely to mean that a decision to take disciplinary action could be unjustifiable. Further, absence for genuine illness should not, on the Authority’s reasoning, be treated in the same way as misconduct may be treated.
Whether regular absenteeism for intermittent illness is reasonable or not will depend on a number of factors, including:
- the terms of the employment agreement, including any provisions as to sick pay;
- whether paid sick leave has been used up;
- the length of employment to date;
- the size of the employer's business;
- the nature of the position held;
- whether a temporary replacement can do the job; and
- the nature of the illness, its duration, and prognosis.
This newsletter is produced by Simpson Grierson. It is intended to provide general information in summary form. The contents do not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
|
