| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 305/06 |
| Hearing date | 24 Aug 2006 |
| Determination date | 26 September 2006 |
| Member | D King |
| Representation | H White ; P Skelton |
| Location | Auckland |
| Parties | Palmer v Bluescope New Zealand Steel Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Applicant revealed his alcohol problem to manager – Required to enter Rehabilitation Agreement (RA") and submit to random breath testing - Dismissed when failed test – Applicant denied consuming alcohol but was unable to obtain blood test – Employer unable to dismiss every person with alcohol or drug problem - Has to manage situation so rights of disabled employee and other employees are weighed fairly and reasonably – If applicant had not volunteered information company would have been unknowingly employing person with alcohol problem, a potentially more dangerous situation – Need for safeguards for employees in drug and alcohol testing environment and need to ensure testing scientifically valid – Also issue regarding privacy and access to test results – Not a question of Authority setting RA aside, rather question of taking its reasonableness and fairness into account as relevant factor – Even if reading correct, issue was whether in all circumstances dismissal justified – Inadequate consideration given to exploring other possible reasons for reading – No evidence alternative disciplinary actions considered – Strict liability approach made RA unreasonable and placed applicant in less advantageous position than employee who did not disclose alcoholism – More than likely that alcohol impaired employee who had not entered agreement like this would have received warning for first offence – Decision to dismiss based on health and safety but disciplinary meetings focused on whether reading accurate – Insufficient account taken of applicant’s ready agreement to take test – Fact applicant had not displayed any performance or impairment problems not taken into account – Unjustified dismissal – Remedies – Parties to meet and try to resolve issue of remedies themselves or with assistance from mediator - Length of service not specified - Crane operator" |
| Result | Application granted ; Question of remedies reserved ; Costs reserved |
| Statutes | Health and Safety in Employment Amendment Act 2002;Human Rights Act 1993 s21 |
| Cases Cited | Harrison v Tucker Wool Processors Ltd [1998] 3 ERNZ 418;Harrison v Tuckers Wool Processors Ltd [2000] ERNZ 572 |
| Number of Pages | 6 |
| PDF File Link: | aa 305_06.pdf [pdf 39 KB] |