| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 63 |
| Hearing date | 14 Apr 2014 |
| Determination date | 17 April 2014 |
| Member | H Doyle |
| Representation | A Sharma ; B Scotland |
| Location | Nelson |
| Parties | Kenmare v Fulton Hogan Ltd |
| Summary | INJUNCTION - Applicant sought interim reinstatement - Positive test for cannabis - Drug and alcohol policy - Random drug and alcohol testing - Stand down without pay - Whether applicant ate cupcakes unaware cupcakes laced with cannabis - Safety sensitive environment - Construction labourer |
| Abstract | AUTHORITY FOUND -;INJUNCTION: No strong arguable case respondent required to offer applicant opportunity of rehabilitation in event of first non-negative test for cannabis. Arguable applicant's representative not provided with all information relied on to reach conclusion applicant's explanation not credible. Arguable case about whether proper selection of names for random drug testing. Arguable case applicant unjustifiably dismissed. Applicant well regarded as employee. Conclusion of doctor consistent with respondent's conclusion about credibility of applicant's explanation, although doctor did not consult directly with applicant. While some images on applicant's Facebook page could be seen to be drug related, any firm conclusion about what images suggested to be left to substantive investigation meeting. Arguable case for permanent reinstatement. Applicant in very difficult financial position and damages would not be adequate remedy. Considerable inconvenience to respondent if required to accommodate applicant at work prior to substantive investigation meeting by taking additional measures to overcome health and safety concerns. Balance of convenience favoured respondent. Overall justice of case against interim reinstatement. Application for interim reinstatement dismissed. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s103A;ERA s125;ERA s127;Health and Safety in Employment Act 1992 |
| Cases Cited | Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129;X v Y Ltd [1992] 1 ERNZ 863 |
| Number of Pages | 12 |
| PDF File Link: | 2014_NZERA_Christchurch_63.pdf [pdf 192 KB] |