| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 6 |
| Hearing date | 8 Feb 2011 - 10 Feb 2011 (3 days) |
| Determination date | 12 January 2012 |
| Member | J Crichton |
| Representation | T McGinn ; J Rooney |
| Location | Christchurch |
| Parties | A v Pacific Blue Employment and Crewing Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably dismissed and disadvantaged by respondent – Applicant invited colleagues to home and each participant consumed alcohol and took pill allegedly given by applicant – One participant (“F”) admitted to hospital with symptoms of drug or alcohol overdose – Applicant claimed gave F legal herbal product – Respondent decided suspension appropriate given both nature of investigation and fact had to address drug and alcohol issues with applicant in past – Respondent flight operations manager (“L”) doubted applicant’s veracity in respect of nature of pill – L concluded F’s illness caused by taking pill given to F by applicant – Applicant given final written warning – Applicant claimed respondent took account of two previous incidents which involved drug and alcohol use – Applicant claimed unfair for respondent to take incidents into account as unproven – Respondent claimed although unproven episodes suggested pattern of behaviour and as they happened close together it was reasonable for them to be taken into account due to safety sensitive nature of applicant’s employment – Applicant claimed L should not have advised aviation medical practitioner (“S”) of nature of allegations and previous incidents – Applicant claimed respondent failed to test any affected employees for drug or alcohol use and failed to test F for pill which applicant admitted giving F – Applicant claimed respondent failed to inquire appropriately into inconsistencies between statements of partygoers – L agreed should have spent more time on inconsistencies but stated F’s evidence was consistent which gave L confidence it could be relied upon – Applicant claimed respondent assisted F to maintain consistency in F’s evidence – Authority not persuaded respondent behaved improperly in obtaining evidence from F – Applicant claimed L’s conclusion inconsistent with evidence of three other employees who stated pill was of type applicant claimed – Applicant claimed L concluded other employees colluded with applicant – Applicant claimed respondent overlooked obvious explanation for F’s illness which was excessive alcohol consumption – Found respondent unreasonably relied on earlier allegations of improper behaviour – Found insofar as respondent allowed consideration of incident to be coloured by earlier episodes respondent erred in treatment of applicant – Found L should not have informed S of earlier incidents – Found respondent should have undertaken drug and alcohol testing of participants of applicant’s party and analysed pill applicant alleged F had taken – Found L’s conclusion on nature of pill F consumed was against weight of evidence – Found respondent conducted substandard investigation informed by improper reliance on historical matters – Found, however, that as applicant took no steps to raise grievance over final written warning could not make finding about justifiability –Police advised L that applicant was suspect of supplying Class C controlled drug and made strong statements about possible risk to travelling public of applicant continuing to work – L informed applicant that suspended until Police completed inquiries – Applicant claimed unjustifiably disadvantaged by suspension – Police advised L that had insufficient evidence to proceed with criminal charges against applicant – L informed Civil Aviation Authority (“CAA”) of name of pilot subject of Police investigation – Applicant claimed L knew no charges would be issued and deliberately misled CAA – CAA began investigation into allegations – L saw toxicology report which showed F had Benzylpiperazine in system – Respondent decided to maintain suspension due to new information – Applicant claimed L deliberately suppressed page of toxicology report which assisted applicant – Respondent claimed toxicology report showed applicant was not honest in previous dealings as suggested illegal drugs present at party and that applicant may have been guilty of supplying illegal drugs – Applicant claimed not available to respondent to reopen investigation on basis Police became interested in matter – Respondent claimed did not understand Police to be inquiring into incident that led to final written warning but rather into wider allegation that applicant guilty of supplying illegal drugs – Respondent considered applicant’s responses to toxicology report implausible – Applicant declined to release full Police file to respondent – Applicant released portion of Police file which showed applicant was suspected of range of criminal offending under Misuse of Drugs Act 1975 – Respondent took account of applicant’s failure to release full Police file and answer all questions – Applicant dismissed – Found respondent did best to protect applicant’s reputation with CAA and to ensure that information provided to CAA was that which law required – Found second suspension not improper – Found respondent entitled to rely on findings of toxicology report – Found respondent adopted fair and measured process – Found criticisms which applicant made and which were well founded related to over-enthusiastic reliance on earlier episodes in applicant’s career where there was no finding of fault – Found mistakes respondent made in investigation leading up to final written warning did not go to heart of decision to dismiss applicant for misconduct – Found decision to dismiss rested fairly on assessments made by respondent – Dismissal justified – No disadvantage – GOOD FAITH – Applicant claimed respondent breached good faith – Found no evidence that good faith had been breached by respondent – Found to contrary evidence suggested applicant breached good faith by failing to engage openly and constructively with respondent in course of investigations – Pilot |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Civil Aviation Act 1990;Health and Safety in Employment Act 1992;Misuse of Drugs Act 1975 |
| Cases Cited | Ashton v Shoreline Hotel [1994] ERNZ 421;Telecom New Zealand ltd v Nutter [2004] ERNZ 315 |
| Number of Pages | 26 |
| PDF File Link: | 2012_NZERA_Christchurch_6.pdf [pdf 133 KB] |