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In hindsight, it was something that could only happen if you invited a rock star to tour your factory.
Three weeks ago, Bono - the lead singer of the rock group U2 - conducted a tour of a Ford motor plant in South Africa. Bono was apparently mid-way through a four-country tour of Africa with US Treasury Secretary Paul O'Neill (presumably for purposes other than promoting his latest CD).
During the tour of the Ford plant, Bono - and several other members of his "entourage" - noticed the "pungent odour of marijuana smoke". When questioned about it, a Ford representative said that the company allowed various of its 3,500 employees to smoke the drug, provided that safety at the plant was not jeopardised.
This item of news is notable for a couple of different reasons.
First, it is most unlikely that an employer in New Zealand - especially one involved in heavy industry - would tolerate any of its employees working whilst under the influence of drugs or alcohol. Not only is the prospect of an intoxicated or "high" worker an obvious health and safety hazard - it is also some thing which has the potential dramatically to affect both efficiency and quality.
Secondly, the case is notable for the fact that the Ford representative admitted that marijuana was correctly identified by its odour. That is something which has been a point of contention in New Zealand over recent years - and which is still the subject of some developing law.
In Willing & Ors v Robert Stone Ltd (Unreported, Employment Court, Auckland, 6 July 2000) three workers were allegedly observed smoking marijuana in a boiler (which was luckily not functioning at the time!). The employees were observed by a co-worker who claimed to have noticed a strong smell of marijuana. The employees were dismissed, in part upon reliance of this worker's observation, for serious misconduct.
Amongst other things, the employees challenged their dismissal on the basis that their co worker had erroneously identified the smell of marijuana smoke. One of the workers explained that he smoked Dutch tobacco, and that the co-worker had probably mistaken this odour for that of marijuana.
Unfortunately for the three employees, it turned out that their co-worker used to live in Holland, and was quite familiar with the smell of Dutch tobacco (which he described as "absolutely revolting"). As a result, he was able to provide compelling evidence that what he had smelled was marijuana smoke.
A similar issue arose in Boyd v BHP New Zealand Steel Ltd (Unreported, Employment Court Auckland, 20 December 2001). In that case, two employees had been apprehended by a maintenance manager smoking in a disused hut. The manager said that he had previously been a cigarette smoker, that he had smoked cigars and a pipe, and that the "sweet-smelling smoke" that he encountered was marijuana. In this case, in addition to the odour of marijuana, the manager also found some dried cannabis around the place where the employees had been smoking.
The employees were dismissed for serious misconduct - and appealed against this decision, in part arguing that the manager had incorrectly identified the odour of marijuana.
In this case, the Employment Tribunal took judicial notice of the fact that ordinary New Zealanders can recognise the odour of marijuana smoke. In other words, the Tribunal accepted that the manager could identify marijuana smoke, because it is something that any ordinary New Zealander can, because of their general experience of life, readily identify. This aspect of the decision was questioned by the Employment Court on appeal - although it was accepted that because of the manager's particular experience as a smoker, it was reasonable to conclude that he could distinguish marijuana odour.
These cases illustrate that some difficult issues may confront an employer seeking to prove the use of marijuana in the workplace. In each case, the test is whether an employer can reasonably form a view that an employee was involved in the use of marijuana at work. In forming that view, an employer cannot take it for granted that a co-worker can conclusively identify marijuana by its smell. It must question the basis upon which a person is able to reach such a conclusion - including taking into account individual experience.
Evidently, the odour of marijuana is something of a workplace hazard for a rock star. Perhaps if he is ever out of work Bono would be snapped up as an excellent workplace drug inspector!
Have you driven a Ford lately?
