| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 107 |
| Hearing date | 29 Nov 2012 |
| Determination date | 28 March 2013 |
| Member | R A Monaghan |
| Representation | L Yukich ; D France |
| Location | Rotorua |
| Parties | Electrical Union 2001 Inc and Anor v Mighty River Power Ltd |
| Other Parties | Cowell |
| Summary | DISPUTE - Parties disputed whether respondent entitled to instruct second applicant (“C”) to undergo random drug test - Authority found positive drug test might be evidence of previous drug use but not evidence of employee’s impairment at time of testing and negative drug test alone not evidence of employee’s fitness to work – Found as C’s circumstances involved refusal to undergo drug test on random basis and did not involve concern about C’s fitness to work, particular clause of parties’ collective employment agreement (“CEA”) did not apply – Found respondent’s introduction of random drug and alcohol testing did not amount to attempt to vary CEA without applicants’ agreement – Found not open to fair and reasonable employer to infer from employee’s refusal to undergo random drug test that fitness to work impaired – Found arguable respondent not entitled to instruct C to provide results of private drug test but applicant accepted no personal grievance raised - Questions answered in favour of respondent – GOOD FAITH - Applicants claimed respondent breached good faith obligations as failed to consult with employees and first applicant about drug and alcohol policy and respondent acted in misleading and deceptive manner – Found no evidence policy could be challenged on basis of lack of consultation – Found no evidence respondent’s human resources consultant guilty of misleading and deceptive conduct - No breach of good faith |
| Abstract | Parties disputed whether respondent entitled to instruct second applicant (“C”) to undergo random drug test. C sought compensation for injury to feelings when respondent instructed C to provide results of C’s private drug test. Applicants claimed respondent breached good faith obligations as failed to consult with employees and first applicant about drug and alcohol policy (“policy”) and respondent acted in misleading and deceptive manner. C refused to comply with respondent’s instruction applicant undergo random drug test. Authority previously found C employed at safety sensitive site of respondent. Applicants claimed respondent’s instruction unlawful as did not comply with parties’ collective employment agreement (“CEA”), which incorporated Privacy Act 1993 principles, and respondent’s attempt to impose random drug testing unlawful attempt to modify terms of CEA. CEA stated respondent, with reasonable just cause, could request employee provide evidence of fitness for work in accordance with specified conditions (“CEA clause”). Parties disputed whether C’s refusal to undergo drug test amounted to just cause requiring C to provide evidence of fitness to work under CEA clause. Applicant suspended. C took drug test privately which returned negative result. C subsequently provided respondent with certificate of fitness to work from C’s doctor.;AUTHORITY FOUND -;DISPUTE: Noted that policy did not expressly state that positive drug test result would be regarded by respondent as evidence of lack of fitness for work. Positive drug test might be evidence of previous drug use but not evidence of employee’s impairment at time of testing and negative drug test not evidence of employee’s fitness to work. Testing employee’s actual fitness to work at time random drug test carried out not immediate concern and concern about fitness to work might only arise later and then prompt application of CEA clause. As C’s circumstances involved refusal to undergo drug test on random basis and did not involve concern about C’s fitness to work, CEA clause did not apply. CEA clause did not prevent respondent from requiring members of first applicant to undergo random drug and alcohol testing. Respondent’s introduction of random drug and alcohol testing did not amount to attempt to vary CEA without applicants’ agreement. Not open to fair and reasonable employer to infer from employee’s refusal to undergo random drug test that fitness to work impaired. Not sufficient nexus between refusal alone and fitness to work to amount to just cause requiring evidence of employee’s fitness to work. Relevant Privacy Act 1993 principles did not fetter respondent’s ability to promulgate policy providing for random drug and alcohol testing. Arguable respondent not entitled to request C provide results of private drug test however C did not advance any legal ground for compensation and applicant accepted no personal grievance raised. Questions answered in favour of respondent.;GOOD FAITH: No evidence policy could be challenged on basis of lack of consultation. No evidence respondent’s human resources consultant guilty of misleading and deceptive conduct. No breach of good faith obligations. |
| Result | Applications dismissed ; Questions answered in favour of respondent ; Costs reserved |
| Main Category | Dispute |
| Statutes | New Zealand Bill of Rights Act 1990 s11;New Zealand Bill of Rights Act s21;Privacy Act 1993 |
| Cases Cited | Cropp v A Judicial Committee & Anor [2008] 3 NZLR 774;Electrical Union 2001 Ltd v Mighty River Power Ltd [2012] NZERA Auckland 375;Hooper v Coca Cola Amatil (NZ) Ltd (2012) 9 NZELR 523;Maritime Union of New Zealand Inc v TLNZ Ltd (2008) 8 NZELC 99,181;New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc v Air New Zealand Ltd [2004] 1 ERNZ 614;Sky Network Television Ltd v Duncan [1998] 3 ERNZ 917 |
| Number of Pages | 13 |
| PDF File Link: | 2013_NZERA_Auckland_107.pdf [pdf 269 KB] |