| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 71 |
| Hearing date | 30 Nov 2010 |
| Determination date | 18 April 2012 |
| Member | M B Loftus |
| Representation | P Cranney, A Connor ; G Malone |
| Location | Invercargill |
| Parties | Te Huia v South Pacific Meats Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed dismissal justified as applicant gave positive drug test – Applicant union representative – Respondent claimed all employees required to agree to respondent drug testing policy when commenced employment – Respondent issued applicant with warnings about attendance – Respondent manager (“H”) told applicant would offer applicant further seasonal employment if applicant agreed that if were more unauthorised absences would be dismissed – Respondent told applicant would be treated as if had clean attendance history - Respondent requested group of employees complete drug tests and some returned positive results – Respondent denied particular group victimised – Applicant claimed all employees who tested positive offered rehabilitation programme – Respondent denied employee whose reading slightly higher than limit deemed unimpaired by respondent doctor and returned to work – Respondent claimed all employees with non-negative result stood down pending laboratory result – Respondent claimed rehabilitation only offered to some employees with good records – Applicant claimed employees tested felt victimised so applicant offered to be tested as well to show group supported by union representative – Applicant returned non-negative result, told to leave workplace and dismissal possible – Applicant not offered rehabilitation – Investigation commenced – Applicant claimed H raised applicant’s previous attendance record at meeting although parties had previously agreed applicant offered “clean slate” – Applicant dismissed – H claimed applicant’s previous absenteeism not a major factor but was taken into account – H claimed applicant had deliberately taken drugs to challenge respondent drug testing policy – Authority found respondent conclusion applicant would not be considered for rehabilitation programme before applicant had opportunity to explain not action of fair and reasonable employer – Found respondent should not have taken applicant’s previous attendance record into account – Found applicant did not have opportunity to comment on allegation applicant intended to undermine respondent drug testing process – Dismissal unjustified – REMEDIES – No contributory conduct – Found reinstatement not practicable - $5,100 reimbursement of lost wages - $5,000 compensation appropriate - Meat Worker |
| Result | Application granted ; Reimbursement of lost wages ($5,100) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s124;ERA s125;Interpretation Act 1999 s4;Interpretation Act 1999 s7 |
| Number of Pages | 14 |
| PDF File Link: | 2012_NZERA_Christchurch_71.pdf [pdf 71 KB] |