A flight controller who lost his job after testing positive for Ecstasy said someone must have spiked his drink at the Rhythm & Vines festival.
New recruit Liam Scullin went to the Employment Relations Authority to fight for reinstatement after the offer of employment was terminated by Airways Corporation of New Zealand (Airways).
Scullin had trained for and had accepted an employment offer as an air traffic controller when he tested positive for MDMA in a hair follicle test.
Airways, a state-owned enterprise, is the only entity certified by the Civil Aviation Authority (CAA) to provide air navigation services in New Zealand.
Scullin’s job as an ATC was to give instructions to pilots to keep aircraft apart from each other and to ensure the safe navigation of air traffic.
The CAA rules require all ATCs hold a class 3 medical certificate.
In August 2018 Scullin applied for the air traffic control training programme at
Airways Training Limited.
He was made a conditional offer for a place in the programme, which he accepted. His training began in November 2018 and continued until last December.
In March this year Scullin was posted to Gisborne control tower at the end of the on-the-job training period. His final performance assessment was completed that month.
On March 19 Airways offered him a job, conditional on – among other things – his satisfactory completion of a pre-employment drug and alcohol test.
On April 6 Scullin undertook the test and the Drug Detection Agency (TDDA) sent a hair sample of his to Omega, a US-based testing company.
TDDA wrote to Airways on April 15 saying Scullin’s hair sample had tested positive for the presence of MDMA (Ecstasy).
On April 17 Airways telephoned Scullin and told him of the positive result.
At a Skype meeting that afternoon to discuss the results, Scullin was asked if he had any initial comments. He explained it could only be an error or mistake in the testing process.
At a further meeting on April 24, with Airways management, Scullin and his union representative, Scullin told Airways that firstly, he would never voluntarily consume drugs.
Secondly, he had attended the Rhythm & Vines festival at New Year and whilst there had become intoxicated.
Thirdly, he said there was a realistic possibility that someone had slipped drugs into his drink or offered him a drink that already had drugs in it.
Airways asked him if he could recall experiencing any effects he would not normally associate with alcohol, but Scullin said he had no such recollection due to the amount of alcohol he had drunk.
Scullin also told Airways he had voluntarily booked an additional drug test with TDDA. That test, taken in May, returned a negative result.
After the meeting, Airways asked TDDA if Scullin’s explanation could be true and whether the result was suggestive of one-off use.
TDDA stated that:
a) Methamphetamines and Ecstasy can be contained or concealed in a drink;
b) Normally the drug stays in someone’s system and shows on the hair follicle test for 12
c) A one-off event of sharing drinks would not appear on the hair follicle test. The hair
follicle test shows a “lifestyle” approach to drug use;
d) While the result was not huge, it did reflect a previous history of drug use;
e) TDDA did not believe this was the result of a one-off use; and
f) The test Scullin was subsequently intending to take might take him below the limit given that the drug stays in a person’s system for a limited period of time. Time had passed between Scullin’s initial and subsequent tests.
It said overall, Scullin’s test result was unlikely to reflect a one-off incident.
The medical adviser of Airways informed the CAA of Scullin’s positive drug test and as a result Airways terminated Scullin’s employment because of his failure to satisfy a pre-condition of his employment.
Scullin submitted to the ERA he should be granted reinstatement because Airways is the only place in NZ where he can work in his trained role.
Airways argued Scullin had demonstrated, as a result of the positive test at a very early stage in his engagement with Airways, that he had engaged in drug use, and that is not compatible with the safety-conscious environment Airways must operate in.
Because Scullin’s role requires a high degree of trust in that he provides manoeuvring instructions to aircraft pilots to prevent collisions any impairment of him has the potential to compromise public safety.
Any pattern of psychoactive drugs is incompatible with safe aviation.
Given Scullin’s failure of a pre-employment drug test, Airways has no confidence that he will abstain from drug use.
Scullin’s role is such that his consuming drugs has the potential to cause significant harm to the public.
It argued Scullin cannot be reinstated to his role where he cannot perform the required
functions due to the CAA disqualifying his Class 3 Medical Certificate.
Airways said it was impracticable to reinstate Scullin to a role that he is currently incapable of performing without the correct certificate.
The ERA did not find Scullin had a strongly arguable case for interim reinstatement.
Eleanor Robinson of the ERA said there would be another hearing to investigate Scullin’s claims more fully.
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