| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2016] NZERA Christchurch 103 |
| Hearing date | 4 & 5 Apr 2016 (2 days) |
| Determination date | 07 July 2016 |
| Member | Peter van Keulen |
| Representation | L Ryder, J Goldstein ; J Douglas |
| Location | Christchurch |
| Parties | McLeod v Envirowaste Services Ltd |
| Summary | UNJUSTIFIED DISADVANATGE - UNJUSTIFIED DISMISSAL - Applicant claimed unjustifiably disadvantaged by unpaid suspension - Applicant claimed unjustifiably dismissed by respondent - Drug testing - Truck driver |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANATGE - UNJUSTIFIED DISMISSAL: Policy did not provide for unpaid suspension. Unpaid suspension placed applicant under financial stress and pressured him to attend disciplinary meeting before information necessary to respond made available. Applicant unjustifiably disadvantaged. No exceptional circumstances to test applicant off-site. Respondent obtained applicant’s drug test in breach of policy. Respondent’s decision to dismiss based on conclusions that applicant under influence during work and likely to reoffend. Respondent did not carry out further investigations into these conclusions or put them to applicant. Respondent did not properly consider applicant’s explanation. Dismissal procedurally flawed. Failure to follow internal policy meant credibility of test result in question. Procedural failings sufficiently serious to render decision to dismiss unsound. Respondent did not consider surrounding circumstances and mitigating factors. Respondent did not appropriately consider discretion to offer rehabilitation. Dismissal unjustified. REMEDIES: Respondent to pay applicant $20,762 reimbursement of lost wages. $544 compensation for loss of overtime benefit appropriate. $11,000 compensation appropriate. |
| Result | Application granted ; Reimbursement of lost wages ($20,762.60) ; Compensation for loss of benefit ($544.32)(Overtime) ; Compensation for humiliation etc ($11,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Employment Contracts Act 1991 s40 - Employment Contracts Act 1991 s41 - ERA s4(1A) - ERA s103 - ERA s103A - ERA s103A(3) - ERA - ERA s103A(4) - ERA s124 - ERA s128(2) - ERA s128(3) - ERA s174D(2) - ERA s174D(3) |
| Cases Cited | Alatipi v Chief Executive of the Department of Corrections [2015] NZEmpC 7;Fuiava v Air New Zealand Ltd [2006] ERNZ 806 (EmpC);Hayllar v The Goodtime Food Co Ltd [2012] NZEmpC 153, [2012] ERNZ 333;Howard v Carter Holt Harvey Packaging Ltd [2014] NZEmpC 157, (2014) 12 NZELR 374;Housham v Juken New Zealand Ltd [2007] ERNZ 183 (EmpC);Parker v Silver Fern Farms Ltd [2009] ERNZ 301 (EmpC);Sam's Fukuyama Food Services Ltd v Zhang [2011] NZCA 608, [2011] ERNZ 482;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315 (CA);Thorne v KiwiRail Ltd [2015] NZEmpC 48;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 (EmpC) |
| Number of Pages | 31 |
| PDF File Link: | 2016_NZERA_Christchurch_103.pdf [pdf 288 KB] |