| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 443 |
| Hearing date | 22 Oct 2014 |
| Determination date | 30 October 2014 |
| Member | A Fitzgibbon |
| Representation | W Reid ; K Dunn |
| Location | Tauranga |
| Parties | Brown 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 - High result - Previous drink driving convictions - Applicant claimed only consumed alcohol and cannabis outside of work - Respondent claimed unusual behaviour displayed by applicant - Applicant sought reinstatement |
| 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: Reinstatement not practicable and reasonable. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $1,500 compensation appropriate. |
| Result | Application granted; Reimbursement of lost wages (quantum to be determined); Compensation for humiliation etc ($1,500); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s125 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;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;H v A Ltd [2014] NZEmpC 189;Hayllar and Matene v The Goodtime Food Company Ltd [2012] NZEmpC 153;Hooper v Coca-Cola Amatil (NZ) Ltd [2012] NZEmpC 11;Lewis v Howick College Board of Trustees [2010] NZCA 320;O'Connor v Ballance Agri-Nutrients Ltd [2014] NZERA Auckland 404 |
| Number of Pages | 18 |
| PDF File Link: | 2014_NZERA_Auckland_443.pdf [pdf 588 KB] |