| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 516 |
| Hearing date | 11 Dec 2014 |
| Determination date | 16 December 2014 |
| Member | R Larmer |
| Representation | S Mitchell ; R McIlraith, K Dunn |
| Location | Auckland |
| Parties | Phillips v Ports of Auckland Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant claimed unjustifiably dismissed by respondent - Respondent required applicant undergo drug test following accident - Applicant left worksite before drug test could be carried out - Refusal to carry out reasonable instruction - Absence from workplace without prior permission - Applicant subsequently provided own negative drug test - Applicant sought reinstatement - Stevedore |
| Abstract | AUTHORITY FOUND -UNJUSTIFIED DISMISSAL: Respondent assumed applicant had received training on new drug and alcohol policy. Certain information not communicated to applicant as required by policy. Concerns not sufficiently investigated. Applicant deprived of opportunity to respond to particular issues. Respondent did not consider issues raised by applicant regarding policy. Respondent asked leading questions of witnesses during investigation. respondent's instructions not consistent with policy. Parties agreed applicant should not continue working shift as had been injured and attended hospital. Questionable whether respondent could require applicant to stay at work in circumstances. Dismissal unjustified. REMEDIES: Respondent to pay applicant reimbursement of lost wages, quantum to be determined. Reinstatement practicable and reasonable. Applicant should have properly raised concerns about drug testing rather than leaving work. Potentially dangerous for applicant to drive home when injured. 100 per cent reduction of compensation appropriate. |
| Result | Application granted; Reimbursement of lost wages (quantum to be determined); Reinstatement ordered; Contributory conduct (100% reduction to compensation for humiliation etc); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s103A(5);ERA s124;Holidays Act 2003 s65 |
| Cases Cited | Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483 |
| Number of Pages | 14 |
| PDF File Link: | 2014_NZERA_Auckland_516.pdf [pdf 241 KB] |