News
Casual dope smokers put their jobs on the line
First published in The Independent, 5 February 2008.
Although its origins are unclear, sometime as far back as the Neolithic age (about 6000 years ago) someone figured out that smoking the elements of the cannabis plant resulted in a particularly pleasant outcome.
The most famous users of cannabis were the ancient Hindus of India and Nepal and the inhabitants of present-day Syria.
The herb was called "Ganjika" in Sanskrit and was, in different cultures, assigned a supernatural quality.
In more modern times - at least in most western civilisations - smoking cannabis has become an illegal activity. For reasons that are more associated with perceptions of social order and morality, it is the view of our law that smoking dope is a bad thing to do.
To some extent, that perception is currently being challenged. Apparently cannabis might be an ideal therapeutic drug for certain illnesses, including cancer and AIDS. It is also perceived as having advantages in addressing symptoms associated with depression and nausea, and in combating some of the negative effects of chemotherapy.
So, on that basis, have we arrived at a time in New Zealand's history when marijuana use may be accepted as having an appropriate part to play in our society?
In employment law, that question is borne out in employers' workplace drug policies. It is generally acceptable for an employer to require an employee to submit to a drug test prior to confirming the offer of employment and, where marijuana use is identified, for the employer to act justifiably in rejecting the applicant for a job.
Precisely this scenario was recently challenged in Canada in the decision of the Court of Appeal of Alberta in Director of the Alberta Human Rights and Citizenship Commission v Kellog Brown & Root
Kellog Brown & Root (KBR) is a construction company. In 2002 it assisted Syncrude Canada Limited in a plant expansion. The project was massive and involved several thousand workers toiling away at its site.
At the time, KBR had a hiring policy which required all persons to take and pass a "post-offer/pre-employment" drug test before they could be confirmed in a job. If the prospective employee failed the test, he or she would not get work.
The stated intention of the policy was "to prohibit impairment from the use of alcohol, controlled or prohibited substances ... ".
John Chiasson applied for a job with the company. He submitted to a drug test and was employed pending its results. He had smoked marijuana some six days before the test - but did not inform anyone at the company (incorrectly assuming that the test would not reveal his use of the substance).
His drug test revealed cannabis use, and he was dismissed.
Chiasson challenged the company's decision to decline him employment by alleging that the KBR drug testing policy discriminated against casual cannabis users.
In short, Chiasson argued that by rejecting him for producing a positive test for cannabis, the company was effectively asserting that he was a drug addict. On this rationale, Chiasson said that the company had acted unfairly - because his use of the cannabis drug was casual and, in the context of the workplace policy, benign.
A court rejected Chiasson's allegations. It observed that the available medical evidence suggested that the effects of even casual use of cannabis sometimes lingered for several days, and could, therefore, affect an employee's performance in the work-place. On this basis, the court said that there was a clear connection between the stated intention of the policy and the decision to exclude Chiasson.
The court went so far as to say that the case was no different than that of a trucking company which had a policy of requiring its employees to refrain from the use of alcohol for some time before driving one of the employee's vehicles. Such policy could not, in the court's view, amount to a conclusion that the company perceived all casual alcohol users as alcoholics, but, instead, reflected a legitimate need for the company to ensure against alcohol-impaired drivers.
The outcome of the case, therefore, was a decision that could validly exclude a casual cannabis smoker from employment.
The fact that the claim was brought, however, perhaps illustrates that there is an increasing body of opinion that employers should think twice about discriminating against users of this particular drug.
