# Where do I stand? Is this victimisation?



## Beatnik (11 Sep 2008)

Hi

I would like to know where I stand regarding an issue with my job..

I dont want to say where I work but I have a safety critical job where all my actions are monitored..

Last week I had a minor "incident" when I made a simple mistake in work and I was taken out of my position and drug tested immedietly but to the knowledge of myself or my collueges it wasnt a safety critical incident or in breach of any regulations warranting a drug test..

In the last 2 weeks a person with the same position as me made the same mistake and a person with a higher up position than me made this same mistake twice in a few days but neither of these where taken out of there job to be drug tested

My company brought in a strict new alcohol and drug policy in january this year which is meant to be across the board for all employees who are in breach of regulations or make mistakes in there work but they failed to drug test the other 2 people that made the same mistake as me.

I tested positive on the drug test with cannabiss as I had smoked some the weekend before and now my manager is looking to demote me down to a lower position as a result so I want to know if this constitutes as discrimination or victimisation..??

My union rep says that he found out today that the mistake I made is on a list of stuff my manager can have people in my position drug tested for but since none of us knew this or have agreed with it can he do this as the conditions of the drug and alcohol policy say that employees need to be totally informed of the policy.??

Also a report was done by an independent expert on my job 4 years ago and he stated it was unsafe to work and the workload should be reduced..Another report was done this year and the expert stated that since the 1st report was made there has been a 15% increase in our work load so this could be a factor in the mistake I made which if the company had of adhered to his recomendations the 1st time might not have happened..So are the company liable for mistakes made by employees due to an overwhelming workload??

I would like to know where I stand legally on this and should I seek the advice of a solicitor

I know this is a little vague but it has to be without giving away where I work and I appreciate any information anyone can provide


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## AriesWoman (11 Sep 2008)

*Re: Where do I stand Is this victimisation?*

If the company didn't inform the employees about the new alcohol and drugs policy (especially if it says employees were to be informed) I don't think they were entitled to do a drugs test on you - maybe they realised this after your drugs test and thats why the other 2 employees didn't have to do one. Also I think the union would have had to agree to the policy before it was implemented. If the company weren't entitled to do the test I would imagine they can't take action any against you because of the result.

Also you could be right about the company being liable about mistakes because of the workload - the workload sounds like it could be a health and safety issue. I would recommend talking to your union rep about both issues.


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## Kate10 (11 Sep 2008)

*Re: Where do I stand Is this victimisation?*

Beatnik,
From the facts given there is no indication of victimisation.  Your employer can choose to test - they are not obliged to test everyone who makes the mistake.  Unless you have other evidence that your employer particularly dislikes you then there is no indication of victimisation, IMO.
However, any changes to your terms of employment must be agreed to by both sides.  If you weren't fully informed about the drug & alchohol policy then it is possible that should not have tested you.  Having said that, now that the HAVE tested you and you have failed the test, they might be considered to be negligent if they leave you in your current position.  If you made another mistake, and someone suffered as a result, they could be sued for not taking action.
You need to speak to a solicitor asap.

Kate.


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## ontour (11 Sep 2008)

*Re: Where do I stand Is this victimisation?*

Had you formally raised your concerns regarding the workload prior to being tested?


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## Beatnik (12 Sep 2008)

*Re: Where do I stand Is this victimisation?*

Thanks for the replies everyone..

The drug and alcohol policy was agreed with the unions but as far as we were concerned it was only for safety critical mistakes which this was not I didnt compromise safety in any way 

Yes the workload has been formally raised with the company trough the unions and the companys plan is to have the recommendations implemented by 2012 but that still doesnt take away from the fact that the company know that the workload is unsafe now

Another point to kate about the company not being able to leave me in my position incase I made another mistake-
Another person with my position made a safety critical mistake which could have endangered lives in december last year[before the new drug policy came in on jan 1st]
This person was able to keep his position under medical supervision but as far as I know i am not being afforded that option under the new drug policy

I have a meeting with my manager and union rep next week so I will know for sure what direction they are goin with it then Ill go to see a solicitor

Once again thanks for your replies


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## Beatnik (12 Sep 2008)

*Re: Where do I stand Is this victimisation?*



AriesWoman said:


> If the company didn't inform the employees about the new alcohol and drugs policy (especially if it says employees were to be informed) I don't think they were entitled to do a drugs test on you - maybe they realised this after your drugs test and thats why the other 2 employees didn't have to do one. Also I think the union would have had to agree to the policy before it was implemented. If the company weren't entitled to do the test I would imagine they can't take action any against you because of the result.
> 
> Also you could be right about the company being liable about mistakes because of the workload - the workload sounds like it could be a health and safety issue. I would recommend talking to your union rep about both issues.


 

The other 2 people had made there mistakes the previous week before I did and they were not tested The testing happens immedietly [within 2 hours] after any incidents so thats not why the company didnt test these other people..

Iv just been talking to my rep and found out that since it was brought to the managers attention that we where not informed of the conditions that we can be tested under ,the management issued them conditions yesterday [7days after I was tested]to my colleagues so the union have not agreed to these conditions as they never knew about them..

Some of the conditions are laughabe to say the least it states that if you cant open or close your locker properly or you spill a cup of tea you can be tested under suspicion of being under the influence of drink or drugs


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## NicolaM (13 Sep 2008)

*Re: Where do I stand Is this victimisation?*

Beatnik
If you have a have a safety critical job and you have tested positive for a drug that could certainly impair your performance, you may be in trouble, notwithstanding any of the other issues you have raised about the companies policies.
Also, there is absolutely no way of knowing from a drug test if you were using spamspamspam at the weekend, or smoking it during your coffee break, and the second scenario would be obviously of great concern to your employer in terms of safety consequences.

Nicola


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## NicolaM (13 Sep 2008)

*Re: Where do I stand Is this victimisation?*

ps I personally would be very unhappy if you have a "*safety critical job *" and you have a positive drugs test.
I have no idea what your safety critical job is, but thinking of a few: ambulance driver, air traffic controller, controlled explosions operative, I'd prefer if they had negative drugs tests.

Nicola


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## Beatnik (13 Sep 2008)

I understand what your saying NicolaM I hold my hands up and admit that yes Iv made a stupid mistake..It was a one off and its not something that I do..Iv learned a very harsh lesson from it but Im only human and do you really think I deserve to have my whole career ruined from it


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## Calebs Dad (13 Sep 2008)

recreational drugs have crept into many walks of life. Some roles to date have been deemed as requiring random drugs testing applied to them, most have not. A person who drives a dumper at the side of the road could be a recreational drug user,  collide with a bus. The likliehood of that person being subject to random drug testing is nil. The whole policy of random drugs testing in the workplace with today's lifestyle requires a greater debate than has currently been had. 

The poster has made a mistake, who hasnt.


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## Purple (13 Sep 2008)

The OP has a safety critical job, used illegal drugs and had an accident while those drugs were in their system. I don’t see where the sense of grievance comes from.


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## Complainer (13 Sep 2008)

The OP was clearly foolish to indulge at the weekend, given the possibility of drug testing. Ironically, if he had been using harder drugs over the weekend, the chances are that they would have cleared out of his system, unlike the spamspamspam.

I've never seen any evidence that the routine drug testing that crept in many US companies for low-level non-safety-critical positions resulted in any improvements in attendance or productivity or quality or whatever.


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## shipibo (16 Sep 2008)

I think you were stupid doing a drugs test knowing you would test positive .....


The fact your company raqndomly selected you needs to be brought up in meeting between Union / Employer, and fact that quantity found in blood would have no impact on your ability to perform your duties.


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## ClubMan (16 Sep 2008)

crumdub12 said:


> I think you were stupid doing a drugs test knowing you would test positive .....


Yes - and the original poster has already said the same so what's the point in others saying it yet again?!   


Beatnik said:


> I understand what your saying NicolaM I hold my hands up and admit that yes Iv made a stupid mistake





Purple said:


> The OP has a safety critical job, used illegal drugs and had an accident while those drugs were in their system. I don’t see where the sense of grievance comes from.


Seems to me that they are not voicing a grievance but rather checking to see if there is perhaps any legality (technicality) that might get them off the hook. Obviously not everybody will agree with such an approach but it's perfectly legitimate to ask.


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## Caveat (16 Sep 2008)

Well, if the 'safety' issue is paramount rather than simply 'testing positive for a controlled substance' (or however it is phrased) I'm sure it could be argued that while the spamspamspam was in his system, he was not, on a practical level impaired by it's presence or under it's influence?

Could some degree of leniency be applied in this case?

(This all assumes he wasn't toking away into the small hours right before work of course)


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## rmelly (16 Sep 2008)

crumdub12 said:


> I think you were stupid doing a drugs test knowing you would test positive .....


 
Not much he/she could do to stop it, given that not taking would in effect be an admission of guilt, and probably result in a worse penalty than a failure - OP?



> The fact your company raqndomly selected you needs to be brought up in meeting between Union / Employer


 
The test wasn't random - it was targeted.



> and fact that quantity found in blood would have no impact on your ability to perform your duties


 
Not relevant - anyone working in an organisation that has a drug testing policy (*regardless* of the circumstances), makes a conscious decision...


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## Caveat (16 Sep 2008)

*Re: Where do I stand Is this victimisation?*



NicolaM said:


> Also, there is absolutely no way of knowing from a drug test if you were using spamspamspam at the weekend, or smoking it during your coffee break


 
Are you absolutely sure about this?


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## DavyJones (16 Sep 2008)

*Re: Where do I stand Is this victimisation?*



Caveat said:


> Are you absolutely sure about this?




I belive it to be true also. Thats why they haven't rolled (forgive pun) it out on the road side test yet. They can tell it's in your system but can't tell if your stoned, unless you happen to be munching on a Micky D and giggling alot.


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## tink (16 Sep 2008)

I also think thats true. In fact from what I have heard the presence of spamspamspam can remain present in your system for up to 90 days after use (drug testing hair) and with urine 7-30 days depending on factors such as metabolism etc . But in a way it's irrelevant as the company are not claiming he was smoking it at work nor do they have to establish that.


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## shipibo (16 Sep 2008)

ClubMan said:


> Yes - and the original poster has already said the same so what's the point in others saying it yet again?!



The fact 2 other workers had  made similar mistakes, but not tested was reason I stated it was stupid. He should have took legal advice, he knew he had drugs in his system, it was stupid !!!!




ClubMan said:


> Seems to me that they are not voicing a grievance but rather checking to see if there is perhaps any legality (technicality) that might get them off the hook. Obviously not everybody will agree with such an approach but it's perfectly legitimate to ask.



Who said he was not entitled ??


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## shipibo (16 Sep 2008)

rmelly said:


> Not much he/she could do to stop it, given that not taking would in effect be an admission of guilt, and probably result in a worse penalty than a failure - OP?



Maybe, you would need to see policy before making a decision, also contacting a solicitor before submitting to test. 





rmelly said:


> The test wasn't random - it was targeted.



Wording was incorrect, I meant 2 other members made same mistake, but were not tested.





rmelly said:


> Not relevant - anyone working in an organisation that has a drug testing policy (*regardless* of the circumstances), makes a conscious decision...



Can you explain what you mean ..


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## Complainer (18 Sep 2008)

The OP may want to read up on the Donegal and Wicklow cases mentioned here [broken link removed]


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## Bronte (18 Sep 2008)

How about going to the manager and saying it was a big mistake on your side and that you'll never do it again and to give you another chance so you don't get demoted.  If you pursue this do you not risk losing your job?  I imagine the manager's job would also be on the line if you were found with drugs in your system and he did nothing about it particularly as you do say your area is a safety critical job.  He may also be making an example of you so other employees do not take drugs.  Also how do you know that taking spamspamspam didn't affect your job performance?  (DavyJones - what is a mickey D?)


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## DavyJones (18 Sep 2008)

Bronte said:


> (DavyJones - what is a mickey D?)




Thats what the cool kids call McDonalds


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## rmelly (18 Sep 2008)

crumdub12 said:


> Can you explain what you mean ..


 
Sure - If I work for an organisation, and know that have a drug testing policy, regardless of whether it is targeted, random, mandatory, required after accident or mistake, whatever...if in those circumstances I choose to smoke spamspamspam (at weekend etc), knowing the consequences of being caught, then when I do get caught, I deserve what I get...

Seriously, when is a person responsible for their own actions?


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## shipibo (18 Sep 2008)

Thanks RMelly,


      My final bit of advice, claim ignorance to positive drug test, do not know how it got there ....


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