| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 81 |
| Hearing date | 11 Mar 2014 - 12 Mar 2014 (2 days) |
| Determination date | 27 May 2014 |
| Member | C Hickey |
| Representation | A McInally ; D Erikson |
| Location | Nelson |
| Parties | Sim and Ors v Carter Holt Harvey Ltd |
| Other Parties | 75 others |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicants claimed unjustifiably disadvantaged by being drug tested in breach of respondent's drug and alcohol policy - Respondent found cannabis plants growing on grounds outside respondent's buildings - All employees subjected to drug test on basis of reasonable cause - Respondent claimed justified in testing all employees as reasonable to assume person who planted cannabis worked at site and employee would have been in breach of operating procedure not to sell, supply, transfer or have in their possession drugs - Men subject to less privacy than women during urine testing - Men observed during testing but women not - Respondent argued no humiliation as applicants could be subject to random drug testing at any time and no disciplinary sanction as result of test - Respondent argued reasonable cause used for similar situation in past with no grievances raised - Respondent claimed testing justified on health and safety grounds - PENALTY - GOOD FAITH - Applicants sought penalty for respondents breach of good faith - Applicants claimed respondent mislead applicants by stating drug testing justified |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE: Parties agreed work site safety sensitive. Respondent had statutory responsibility to ensure safety of employees however no reasonable employer would breach policies or procedures made with express purpose of keeping employees safe. If respondent concerned employee/s impaired it had clear policy to test employee/s. Reasonable cause testing in collective agreement required evidence to suspect individual employee affected by drugs before deciding to test. It applied to individual employees and not whole work force. No suspicion that any employee tested was exhibiting conduct, appearances or behaviour set out in respondent's operating procedures. Reasonable cause different from random testing as level of suspicion involved. Disciplinary sanction not required for finding of unjustified disadvantage. Applicants required to undertake invasive procedure imposed by respondent outside conditions of employment. Drug testing compromised applicant's dignity and privacy and was not in line with terms and conditions of employment. reasonable employer would not have been so confused or ignorant of its own policy not justified on basis of health and safety concerns. Testing would not have identified owner of cannabis. Testing not reasonably required or allowed. Applicants unjustifiably disadvantaged by being drug tested in breach of respondent's drug and alcohol policy. REMEDIES: Appropriate for parties to determine compensation due to ongoing employment relationship and high number of applicants. Authority reached preliminary view observation of men during testing infringed rights to privacy and right to be treated with dignity. Authority stressed this decision was limited to facts of case and did not necessarily apply to genuine reasonable cause testing. Compensation appropriate, quantum to be determined.;PENALTY - GOOD FAITH: Respondent breached duty of good faith. Breach deliberate but not so serious and sustained as to warrant penalty. No penalty. |
| Result | Application granted (unjustified disadvantage); Compensation for humiliation etc (quantum to be determined); Application dismissed (penalty - good faith); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1);ERA s4(1)(b);ERA s4A;ERA s4A(1);ERA s103A |
| Cases Cited | Carter Holt Harvey Ltd v National Distribution Union Inc [2002] ERNZ 239;Hooper v Coca-Cola Amatil (NZ) Ltd [2012] NZEmpC 11;New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc v Air New Zealand Ltd [2004] 1 ERNZ 614;Waikato District Health Board v New Zealand Public Service Assoc Inc [2008] ERNZ 80 |
| Number of Pages | 21 |
| PDF File Link: | 2014_NZERA_Christchurch_81.pdf [pdf 292 KB] |