| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 82 |
| Hearing date | 17 Apr 2013 |
| Determination date | 09 May 2013 |
| Member | M B Loftus |
| Representation | P de Wattignar ; R Brazil |
| Location | Dunedin |
| Parties | Leith v Hyslop Blair Transport Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed due to concerns about applicant’s ability to perform duties safely after conviction for cultivating cannabis for own use and whether could trust applicant – Authority found applicant’s claim stated no longer used drugs undermined by other evidence and admission during initial meeting – Found applicant’s claim stated willing to take frequent drug tests undermined by immediately following statement tests would be meaningless as cannabinoids remained in system for some time after use – Found did not prefer applicant’s claim applicant’s comment had “gotten away with it” before referred to cannabis use rather than lying to respondent – Found respondent had reason to be concerned about applicant’s ability to perform duties safely and to question whether could trust applicant – Dismissal justified – PENALTY – Applicant sought penalty for respondent’s failure to provide written employment agreement – Found no evidence of deliberate impropriety – No penalty – Driver |
| Abstract | Applicant employed by respondent as driver. Applicant claimed unjustifiably dismissed by respondent and sought penalty for respondent’s failure to provide written employment agreement (“EA”). Applicant sought two days’ leave to attend court to support friend. Applicant did not tell respondent also facing charges on specified days. Applicant convicted of cultivating cannabis for own use. Respondent became aware of conviction when reported in media next day. At meeting between parties applicant admitted smoked cannabis regularly for 30 years but claimed never smoked before came to work as use limited usually to Friday night. Applicant suspended by agreement. Respondent wrote to applicant seeking feedback on various concerns, including potential danger if applicant drove under influence of drugs, risk of prosecution of, and reputational damage to, respondent, fact respondent learned of conviction through media and fact applicant misled respondent into believing court appearance as witness in friend’s case. At subsequent meeting respondent claimed applicant failed to see cannabis consumption as issue when drove trucks and stated did not tell respondent why needed time off work because applicant had “done it before and gotten away with it”. Applicant claimed not asked if still smoked cannabis, stated had not used drugs while employed at respondent and offered to undertake drug tests as required by respondent. Respondent claimed applicant’s statement had gotten away with lying previously destroyed any trust and confidence in applicant. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMSISAL: Applicant’s claim stated during second meeting no longer used drugs undermined by claim respondent never asked if applicant still used drugs, admission made during initial meeting and applicant’s subsequent evidence. Applicant’s claim stated willing to take frequent drug tests undermined by immediately following statement tests would be meaningless as cannabinoids remained in system for some time after use. Authority did not prefer applicant’s claim comment had “gotten away with it” referred to cannabis use rather than lying to respondent. Respondent had reason to be concerned about applicant’s ability to perform duties safely and to question whether could trust applicant. Respondent’s concerns expressed in letter to applicant and applicant’s responses considered fully. Dismissal justified.;PENALTY: No evidence of deliberate impropriety as employment relationship entered relatively informally in response to request from mutual friend of parties. No evidence applicant requested written EA. No penalty. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s63A;ERA s64;ERA s103A;ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d) |
| Number of Pages | 7 |
| PDF File Link: | 2013_NZERA_Christchurch_82.pdf [pdf 217 KB] |