Our partner Jorge Arredondo talked to Diario Financiero about the ruling issued by the court that questioned the dismissal of workers due to drug use.
There is concern among most of the specialists consulted regarding the implications of the controversial ruling, which ordered SQM to pay a millionaire indemnity.
Confusion, concern, surprise. This is how the reaction of the legal labor world can be summarized after learning of the ruling of the Labor Court of Iquique, in which the justice ordered the payment of a millionaire indemnity to three workers who were dismissed from Sociedad Química y Minera de Chile (SQM S.A.) for drug use.
After conducting a drug test in December 2023, SQM dismissed the workers without severance pay for testing positive for marijuana and cocaine use under the grounds of Article 160 No. 7 of the Labor Code. That is, “serious non-compliance with the obligations imposed by the contract”, since the provisions of that document were not respected, nor the provisions -and express prohibitions on the presence of drugs- established in the company’s Internal Regulations on Order, Hygiene and Safety (Riohs).
However, the court, while noting that the employer has “a legitimate objective” in establishing drug controls, questioned the company’s “zero tolerance”. “The requirement of a zero consumption policy goes beyond ensuring the optimal performance of workers, being excessive and unreasonable,” it said.
For Marcelo Albornoz, partner at Albornoz y Cía and former director of Labor, the sentence is “ambiguous”, because on the one hand the ruling makes a full recognition of the objective risks involved in the presence of drugs in the workplace and, on the other hand, “defends, questionably, the consumption of drugs within the private life of people”.
In this line, the lawyer adds that article 184 of the Labor Code is clear in stating that the employer must adopt all measures to protect the life and health of workers, which is consistent with the exhaustive regulation of the matter in the internal regulations of the firm and its “zero tolerance” policy.
“With this ruling a dangerous door is opened regarding the acceptance of the presence of drugs in the workplace, relativizing the necessary importance of occupational safety and the duty of safety that weighs on employers,” criticized Albornoz.
For Lilia Jerez, partner of GNP Abogados Laborales and also former director of the Labor Department, this case brings to the forefront a relevant issue: “Do events occurring outside working hours affect the employment relationship? In her opinion, they can, facing the employer “the challenge of proving both the occurrence of the event and the causal relationship with its consequences, which must have a concrete labor impact. Causation, as in other areas of law, is a necessary element to establish liability. A recent example of this is the BHP ruling for sexual harassment”.
For Jerez, moreover, the standard of proof required by the court to justify the prohibition of drug use is questionable. “This interpretation could lead to the extreme of, for example, considering that only in the event of an accident caused by a worker under the influence of substances, it would be possible to take disciplinary measures against him, which could go against the preventive measures that could be applied”.
The same reading was given by Jorge Arredondo, of AZ, who added that he did not share the court’s criterion. “What would have happened if these workers had an accident and drug use had been detected afterwards? Would the employer have been responsible for not having adopted the measures to identify the risk in the execution of the work?” he said, adding that on the one hand the employer is punished when he executes control measures and on the other hand he is sanctioned when he does not take the necessary measures to prevent accidents. “I think this kind of reasoning leaves a number of questions and loopholes”.
Right criterion
On the other side of the argument, Karla Varas, professor of labor law at the PUCV, said that the criteria used by the court is correct.
“I know it is a delicate issue, but the criterion of the sentence is mainly rooted in how far the employer’s control extends, the employer’s power of command and direction,” said Varas, who added that such power is limited to strictly labor matters.
“The sentence says that the internal regulation of the company, which gives zero tolerance to drug use, goes beyond this power of direction and control over the workers, because it invades the private sphere,” he explained.
Therefore, for the lawyer, the ruling is along the right lines. “What the worker does outside his working day is strictly a private matter, and if he eventually consumes drugs in that environment, it is something in which the employer cannot interfere, much less deploy its disciplinary power. In this context, I believe that it makes an adequate weighing of the rights that are at stake, on the one hand, the right to the private life of the workers and on the other hand this power of command and direction.”
