If you didn’t feel just a bit disappointed when Valarie Adams missed out on confirming her world dominance and having the Olympic Gold Medal conferred on her in London then sorry, but you can’t be human! Let’s face it, the only way the Belarus shot putter could beat Val was to cheat!

Since 1992 employers around New Zealand have worked to ensure they meet the requirements of the Health and Safety in Employment Act to take all practicable steps to avoid employees harming themselves at work. In the same vein as the IOC catch drug cheats in sport, one practicable step employers have taken has been to introduce a drug testing regime in the workplace.

Much debate has ensued over the last decade over which method of testing should be used in the employment environment, urine testing or saliva testing. Some quarters prefer saliva testing because it is less invasive than urine testing.

In a recent Employment Court decision this issue was addressed by reference to a full bench decision of Fair Work Australia (our Court’s equivalent). In the Employment Court decision two employees were dismissed after returning two positive drug tests undertaken using urine testing. The employer had promulgated a written policy addressing drug testing and rehabilitation which both employees were aware of. In both cases the second test indicated significantly less THC-Acid than the first test.

Unfortunately for the employer, it failed to adhere to its own policy and therefore the dismissals were unjustified and remedies were awarded to the two employees. In his findings the Judge commented that in terms of the law as it stands in New Zealand, the scientific advances made in testing procedures have moved on considerably since other New Zealand decisions in 2004 and 2005 relating to drug testing.

The Judge stated that in recognising the legitimate right of employers to try and eliminate the risk that employees might come to work impaired by drugs or alcohol, an employer cannot dictate what drugs or alcohol an employee may take in their own time.

The Judge then relied on a conclusion by the full bench of Fair Work Australia that THC-Acid levels do not indicate impairment or when and how much cannabis is used. The difficulty with the urine testing method is that it may show a positive result even though it is several days since the person has smoked the substance. This means that a person may be found to have breached a policy even though their actions were taken in their own time and in no way affect their capacity to do their job safely. In other words, the urine test may show a propensity for impairment but not actual impairment.

In the Australian case it was held that where oral fluid testing was readily available, the introduction of urine testing by the company would be unjust and unreasonable. The case was concerned with an employer implementing a new drug testing regime.

Given the Employment Court’s reliance on the Australian case, drug and alcohol policies need to ensure any issues arising from urine versus oral testing can survive scrutiny by either the Employment Relations Authority or the Employment Court and that the policy is clear about its purpose and is clear as to what constitutes a breach of the policy.

In line with our commitment to develop the Tompkins Wake brand and grow superior relationships with all of our clients, we have added a new type of specialist (a non-lawyer!) to the team. Sheryn Cook has been appointed as the Tompkins Wake Business Development Manager.

Sheryn has an extensive commercial background in both corporate and start up entities and comes to Tompkins Wake from the food industry. She spent the best part of 14 years with the New Zealand Dairy Board and Fonterra, spanning a variety of Technical, Project Management and Sales and Marketing roles both in New Zealand and in Europe.

Sheryn and her husband returned to New Zealand in 2007 and since then she has been involved in a range of start up and entrepreneurial endeavours in the Waikato region.
These include the Kaimai Cheese Company in Waharoa and the gourmet sausage and small goods producer Franks Sausages in Te Aroha.

In this new role for Tompkins Wake, Sheryn’s background ensures she understands the complexities involved across the business spectrum – from small start up’s to large corporate organisations. Sheryn is responsible for all areas of Tompkins Wake’s business development and marketing – an initial key area of focus will be on improving internal sales and marketing systems and processes in order to maximise each client’s satisfaction with Tompkins Wake’s services.

We look forward to introducing Sheryn to our clients over the coming months.

Tompkins Wake is pleased to announce they are working closely with the Finance Department of the University of Waikato Management School and will host the Waikato University City Based Finance diploma series. The series will be held in the Tompkins Wake Boardroom two evenings a week starting at 5.30 pm. This means busy professionals and executives can obtain a finance diploma to enhance their careers, and still be home in time for dinner or to put the kids to bed.

Waikato Management School has designed the programme so individuals can obtain an internationally recognised university qualification in finance. Classes will include seminars from respected finance professionals representing enormous value for money.

Participants can study towards achieving a Graduate Diploma in Finance in only 12 months or a Graduate Certificate in Finance in only 6 months.

Our business continues to grow as we maintain our focus on providing our clients with national-caliber advice and as we continue to recruit very capable lawyers to our team. Recent reports of business confidence growing and commercial activity strengthening are corroborated by the work we are doing here.

In the last newsletter I discussed the need to appoint an experienced and competent team of strategic advisors that assist with your business planning and its implementation. This need applies to both large and small businesses.

This issue, I would like to update you on international trends in managing the cost of lawyers. Clients have made it clear they will no longer give open cheques to their lawyer to pay their bills, and that they are tired of paying lawyers’ bills they regard as onerous. International trends are towards a ‘no surprises’ billing process.

Around the world, larger corporate clients are seeking clear indicators of the cost of work especially if it falls into the ‘well known and understood’ category. Hourly rates of different lawyers multiplied by the hours each spent no longer hold much interest. More often, the value of these identifiable transactions and proceedings are identified at the commencement of the arrangement and the exceptions and escalators are included in the letter of engagement. This places lawyers in a position where they need to manage the whole project more carefully.
For large law firms with large clients the arrangement can be quite complex and may need additional management, but a good working relationship, the incentive for the law firm to manage their resources efficiently, and the client’s clear understanding of their payment commitments are a win-win combination.

For individuals, the lessons are not very different. Discussing the cost at the start, understanding the variables and how these will be managed, and accepting arrangements to pay promptly every month will enable the law firm to deliver a more efficient and lower cost outcome while still delivering the appropriate result for the client.

At Tompkins Wake we are open to this more modern approach to arranging fees – so ask us about the options. We also understand that some clients are reluctant to change the time-honoured system, and that the possibility of a job taking less time than expected may result in a saving motivates them to stay with the hourly rate model. We will manage our cost structures either way, as our clients determine, but we encourage you to discuss the options with us. My objective here is to ensure you are aware the options exist, and that there is an alternative to the ‘surprise’ lawyers’ bill each month!