| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 404 |
| Hearing date | 10 Sep 2014 |
| Determination date | 06 October 2014 |
| Member | A Fitzgibbon |
| Representation | S Mitchell ; K Dunn |
| Location | Tauranga |
| Parties | O'Connor v Ballance Agri-Nutrients Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant claimed unjustifiably dismissed by respondent - Drug testing - Reasonable cause - Complaint from public applicant smoking cannabis - Applicant claimed smoking cigarette - Non-negative result - Applicant accepted some cannabis at home but not at work - Respondent claimed applicant displayed unusual behaviour which led to reasonable cause drug test - Drug testing result low |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: No dispute applicant's role safety sensitive. No mention of unusual behaviour in notes of meeting. Applicant did not display behaviour warranting drug test. Complaint from public did not entitle respondent to require reasonable cause test. No grounds to request drug test. Respondent failed to follow drug and alcohol policy. Positive test in breach of own policy did not allow respondent to retrospectively validate testing process. Measures of education, training, counselling or rehabilitation not offered despite being provided for in respondent's policy. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $10,857 reimbursement of lost wages. $3,000 compensation appropriate. |
| Result | Application granted; Reimbursement of lost wages ($10,857.56); Compensation for humiliation etc ($3,000); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124;ERA s128 |
| Cases Cited | Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2012] FWAFB 4998;Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2012] FWA 1809;Hayllar and Matene v The Goodtime Food Company Ltd [2012] NZEmpC 153;Hooper v Coca-Cola Amatil (NZ) Ltd [2012] NZEmpC 11 |
| Number of Pages | 15 |
| PDF File Link: | 2014_NZERA_Auckland_404.pdf [pdf 282 KB] |