| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 30 |
| Hearing date | 17 Aug 2011 - 12 Oct 2011 (2 days) |
| Determination date | 20 February 2012 |
| Member | P Cheyne |
| Representation | A Sharma ; R D Webster |
| Location | Nelson |
| Parties | Patchett v Contour Roofing Nelson Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged and dismissed by respondent – Applicant dismissed after alleged positive drug test and refusal to undertake further drug testing – Applicant claimed occasional drug use did not pose risk to safety at work – Respondent claimed suspected some work and behaviour in factory was result of employees’ drug and alcohol use - Respondent’s health and safety coordinator (“E”) claimed respondent chose to randomly test all factory employees so did not single employees out – Applicant provided urine sample - Applicant’s test result unconfirmed and showed applicant required further test - Respondent told applicant could not return to work until provided clear test – Applicant denied under influence of drugs - Applicant suspended - Respondent asked applicant to sign parties’ drug rehabilitation contract (“DRC”) – DRC required applicant to have random drug tests over 12 month period - Applicant denied was told could seek advice before signed DRC and claimed respondent said applicant would lose job if did not sign DRC next day – Applicant provided second urine sample which tested negative – Applicant returned to work – Respondent told applicant would not be paid for period suspended and did not explain why had tested applicant – Applicant refused to provide further drug tests as had been sick and claimed had been advised by union not to provide further samples – Respondent told applicant could agree to test or go home – Parties had meeting about applicant’s refusal of drug test, respondent told applicant could be dismissed and should bring support person – Applicant agreed to further drug test (“third sample”) – Third sample produced unconfirmed positive but accompanying report recorded sample as negative – Drug testing company provided respondent with further information about limitations of a positive sample and possibility of false positives – Respondent did not discuss further information about sample limitations with applicant - E claimed third sample showed presence of cannabis but at level lower than required for positive test – E claimed applicant delayed test so drug levels lower when tested and must have used cannabis after signing DRC – Applicant dismissed – Authority found parties’ employment agreement and health and safety handbook stated applicant subject to reasonable cause drug testing regime - Found respondent told applicant did not suspect applicant of drug or alcohol use and respondent surprised by applicant’s positive result – Found no reasonable cause to test applicant at or near time applicant tested and applicant had never given respondent reason to suspect under influence of drugs or alcohol – Found applicant suspended without opportunity to comment on suspension – Found applicant disadvantaged by suspension as suspension period unpaid and increased pressure on applicant to sign DRC – Found fair and reasonable employer would not have issued final warning and suspended applicant without pay while investigated allegation – Unjustified disadvantage - Found fair and reasonable employer would not have required applicant to provide first sample or sign DRC – Found fair and reasonable employer would not have concluded applicant delayed further test – Found respondent failed to share relevant information about drug test limitations with applicant or provide opportunity to comment before dismissed – Dismissal unjustified – REMEDIES - Found no evidence to suggest third sample not false positive and respondent should bear full responsibility for consequences of unlawful conduct – No contributory conduct – Reimbursement of lost wages appropriate – Parties to determine quantum - $5,000 compensation appropriate for unjustified disadvantage - $10,000 compensation appropriate for unjustified dismissal - Aluminium Joinery Fabricatory & Site Installation Person |
| Result | Applications granted ; Reimbursement of lost wages (quantum to be determined)(unjustified disadvantage and unjustified dismissal) ; Compensation for humiliation etc ($5,000)(unjustified disadvantage) ; Compensation for humiliation etc ($10,000)(unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s68;ERA s69;ERA s103(1)(b);ERA s123(1)(b);ERA s128(2) |
| Cases Cited | Hooper v Coca-Cola Amatil (NZ) Ltd, J Crichton, 18 November 2010, CA 211/10;Hooper v Coca-Cola Amatil (NZ) Ltd [2012] NZEMPC 11 |
| Number of Pages | 21 |
| PDF File Link: | 2012_NZERA_Christchurch_30.pdf [pdf 109 KB] |