| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 148/08 |
| Hearing date | 3 Jul 2007 - 4 Jul 2007 (2 days) |
| Determination date | 22 April 2008 |
| Member | L Robinson |
| Representation | AM McInally ; K Thompson |
| Location | Auckland |
| Parties | V v Air New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed summary dismissal following failure of random drug test unjustified – Parties agreed applicant worked in safety sensitive area – Applicant required to take random drug test by manager (“W”) – Found applicant told W had problem with test implying would fail – Applicant informed had failed drugs test – W advised applicant stood down and would receive letter as to what would occur next – Applicant met with aviation medical officer (“S”) who verified positive test result – Applicant summoned to attend meeting to discuss possible suspension – Applicant advised respondent had no objection to suspension and would cooperate fully – Applicant met with chemical dependency clinician (“G”) who diagnosed applicant with high probability of being alcohol and cannabis dependent – G provided report to respondent’s chief medical officer (“P”) – At second meeting applicant argued disagreed with G’s report – At further meeting applicant advised dismissed for serious misconduct in breach of drug policy due to positive drug test result – Respondent argued full and fair investigation carried out where applicant acknowledged use of cannabis for extended period and attendance at work after use – Authority found applicant immediately disclosed using cannabis on regular basis but did not believe impaired ability to work safely – Respondent argued not for applicant to assess whether impaired – Argued enough that applicant breached drug policy – Authority found drug policy in practical terms directed employees to remain drug free at work – Found applicant aware of policy not to work under influence of drugs for safety reasons – Found applicant contending mere positive test without more not serious misconduct – P gave evidence that positive result demonstrated relative likelihood of impairment – Found policy did not require applicant remain unimpaired but required applicant be drug free during work hours – Authority found positive test not of itself serious misconduct and summary dismissal not required – However, positive random test result breached policy requirement applicant remain drug free at work – Found repeated failure by applicant to remain drug free over prolonged period in safety sensitive role caused respondent to doubt faithful service – Found applicant’s conduct constituted serious misconduct – Authority considered whether fair and reasonable employer would have ordered summary dismissal – Found applicant’s conduct open with respondent and preferred rehabilitation over dismissal – Found scope for rehabilitation demonstrated positive test result did not render dismissal automatic – Authority advised that respondent referred eleven employees to rehabilitation – Authority found W entitled to consider risk applicant posed – Authority rejected respondent’s argument that applicant did not genuinely believe in rehabilitation programme – Found unfair W never put view to applicant for response – Found discussion with applicant about rehabilitation seriously deficient – Found respondent also did not give proper consideration to alternatives to rehabilitation – Authority concluded applicant not treated sensitively in respect of whether candidate for rehabilitation rather than summary dismissal – Summary dismissal unjustified – REMEDIES – Authority found applicant lost chance at rehabilitation and consequently lost income from continuing employment – Authority assessed chance of rehabilitation at 75 percent – Authority accepted claim of lost income and applied 75 percent assessment finding $15,000 lost earnings appropriate – Authority found seriously blameworthy conduct meant no award for compensation for humiliation – Alpha operator ETV |
| Result | Application granted (Dismissal) ; Loss of chance ($15,000) (Lost earnings) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103(1)(a);ERA s103(1)(b);ERA s124 |
| Cases Cited | North Island Wholesale Groceries Limited v Hewin [1992] 2 NZILR 176;Click Clack International Ltd v James [1994] 1 ERNZ 15;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;Airline Stewards & Hostesses of NZ IUOW v Air New Zealand Ltd [1990] 3 NZLR 549 |
| Number of Pages | 26 |
| PDF File Link: | aa 148_08.pdf [pdf 101 KB] |