| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 138 |
| Hearing date | 29-31 Jul 2014 |
| Determination date | 05 September 2014 |
| Member | H Doyle |
| Representation | A Sharma ; B Scotland |
| Parties | Kenmare v Fulton Hogan Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably disadvantaged by selection for random drug test and unpaid suspension - Applicant claimed unjustifiably dismissed by respondent - Random drug testing - Safety sensitive role - Cannabis - Stand down - Whether applicant inadvertently consumed cannabis-laced cupcakes at party - Whether applicant lied about circumstances of cannabis consumption - Facebook - ARREARS OF HOLIDAY PAY - Applicant sought arrears of holiday pay - Annual leave used while applicant stood down without pay - PENALTY - Applicant sought penalty for respondent's breach of employment agreement |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE: Respondent complied with process in drug and alcohol policy for selecting employees for random drug testing. Applicant not unjustifiably disadvantaged by selection for random drug test. Respondent entitled to stand applicant down without pay for two days prior to receiving confirmation of non-negative test result from ESR. Nothing in relevant documents to support unpaid stand down until employment terminated if rehabilitation not offered. Applicant unjustifiably disadvantaged by unpaid suspension following confirmation of test result from ESR. REMEDIES: No contributory conduct. Respondent to pay applicant $3,472 reimbursement of lost wages. Interest payable. $4,000 compensation appropriate.;UNJUSTIFIED DISMISSAL: No full disclosure of nature of respondent's further investigations or concerns arising from investigations to allow applicant to respond. Failure to provide information requested by applicant's representative breach of good faith. Respondent did not put concerns to applicant that applicant untruthful in explanation that applicant's friend (J") also failed random drug test at different employer. Not put clearly to applicant that doubt about truthfulness of applicant's explanation for non-negative result. Offer of rehabilitation discretionary but unfair for respondent to not advise applicant why rehabilitation not offered. Procedural failures not minor and resulted in applicant not being able to respond to matters relied on to not offer applicant rehabilitation. Fair and reasonable employer could have concluded applicant's explanation about cupcakes laced with cannabis lacked credibility. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. Reinstatement not practicable or reasonable. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. Leave reserved for parties to return to Authority if unable to determine quantum of lost wages. $1,000 compensation appropriate.;ARREARS OF HOLIDAY PAY: Respondent to pay applicant arrears of holiday pay, quantum to be determined.;PENALTY: Respondent took steps to ascertain whether stance regarding unpaid stand down was correct. Remedies already granted for unjustified disadvantage. No penalty." |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal)(arrears of holiday pay) ; Contributory conduct (50%)(unjustified dismissal) ; Reimbursement of lost wages ($3,472.20)(unjustified disadvantage) ; Interest (5%) ; Reimbursement of lost wages (quantum to be determined)(unjustified dismissal) ; Compensation for humiliation etc ($4,000)(unjustified disadvantage)($1,000)(unjustified dismissal) ; Arrears of holiday pay (quantum to be determined) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4(1A)(b);ERA s4(1A)(c);ERA s103A;ERA s103A(3);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(4);ERA s103A(5);ERA s124;ERA s125;ERA s174;ERA Second Schedule cl11;Judicature Act 1908 s87(3) |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;George v Auckland Council [2014] NZCA 209;Kenmare v Fulton Hogan Ltd [2014] NZEmpC 96;Kenmare v Fulton Hogan Ltd [2014] NZERA Christchurch 63;Lewis v Howick College Board of Trustees (2010) 7 NZELR 539 |
| Number of Pages | 38 |
| PDF File Link: | 2014_NZERA_Christchurch_138.pdf [pdf 320 KB] |