Random drug tests in spotlight with ERA ruling

An assistant cool store manager who was fired for refusing her employer's random drug test has lost her case of unjustified dismissal at the Employment Relations Authority (ERA).

Ripeka Baker was terminated on the grounds of serious misconduct in August 2021 for refusing to submit to Eastpack Limited's random drug tests, despite her employment agreement mandating she participate in them.

"Considering Ms Baker's dismissal overall, I find that Eastpack's actions, and how Eastpack acted, were actions that a fair and reasonable employer could have taken in all the circumstances," ERA member Claire English said in her ruling.

"Eastpack was entitled to consider her surprising and vehement refusal to be a type of serious misconduct that warranted the ending of the employment relationship, as set out in her employment agreement."

Refusal to take random drug test

Baker was selected for a random drug test on August 9, 2021, when she was off visiting another Eastpack site in the morning.

The drug detection van arrived at 8:00 am, and Baker drove by it twice between 9:14 and 9:24 am when she returned from her site visit. Her employer later called between 9:25 and 9:27 am, where she was informed that she was randomly selected for the drug test and was needed at the van.

Instead of complying, Barker left the site to have breakfast at a local cafe.

Baker received another phone call in the same hour from her manager to ask when she would return to take the drug test.

"She advised that she would not be coming in as she was having breakfast, and was feeling harassed," the ERA heard.

The drug detection van left at 10 AM, with Baker arriving 10 minutes later.

"She was unable to explain why she took between 43 and 45 minutes off for breakfast in the middle of the morning, or why she returned to site at 9:14, left at 9:17, and then returned again at 9:24 before leaving at 9:27, immediately after being advised by her manager that she needed to report for a random drug test," the ERA heard.

Baker agreed with her manager to take the required drug test the next van was on site, which happened to be the next day.

The employee, who was asked to report to work by her manager, once again refused to participate in the drug test. Baker only took the drug test on August 23, which yielded negative results.

Eastpack, which commenced a disciplinary process after her avoidance on August 9 and her refusal the day after, decided to terminate her on August 30 for serious misconduct.

Unjustified dismissal claim

Baker raised an unjustified dismissal case to the ERA, arguing the company's policy on drug tests gave her insufficient time to take the test.

The company's policy allows Baker to have an hour to complete the drug test, but according to the employee, the drug detection van had already left before the hour was over.

On her second refusal, Baker defended that she could not have been selected for a random test on the day of her day off.

The ERA said the allegation that Baker avoided or delayed her drug test on the first day cannot stand considering the company's one-hour requirement. But her refusal on the second day despite agreeing to take one less than 24 hours before, was a "breach of her obligations."

"In these circumstances, it was open to Eastpack to find her explanation that she had found the reference to a 'random' drug test so confusing that she believed she was entitled to refuse to take the test, lacking in credibility and to reject it and end the employment relationship on the basis that it could no longer have trust and confidence in Ms Baker."