| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 379/08 |
| Hearing date | 23 Oct 2008 |
| Determination date | 05 November 2008 |
| Member | J Scott |
| Representation | AM McInally ; G Steele |
| Location | Hamilton |
| Parties | Bailey v Independent Extrusions Ltd (Inex) |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged when given final written warning - Claimed unjustified disadvantage exacerbated when denied right to work overtime and benefit from respondent’s bonus scheme during warning - Respondent had drug and alcohol policy that included drug testing and drug dog searches - Drug dog expressed interest in applicant during search - Applicant’s car on respondent’s property searched - Before search applicant stated if drugs found would belong to relatives who borrowed car - Small amount of cannabis found in car - Applicant underwent drug test - Applicant suspended until result known - Result negative - Applicant attended meeting to discuss allegation of possession of cannabis on respondent’s property - Applicant given final written warning for six months - Respondent’s evidence preferred where factual disputes - Authority satisfied presence of cannabis in applicant’s vehicle on respondent’s property amounted to possession for purposes of respondent’s drug and alcohol policy - Found applicant aware of drug and alcohol policy - Found applicant put on notice of seriousness of allegations, advised of right to representation, and given opportunity to explain - Applicant claimed respondent closed mind to explanation for possession of cannabis - Authority found respondent weighed number of factors before reaching decision to dismiss - Found respondent not completely satisfied cannabis not applicant’s but gave benefit of doubt and gave warning rather than dismiss - Found consequences of receiving final written warning, being denial of opportunity to work special overtime and participate in bonus scheme, was part of respondent’s disciplinary procedures and known to applicant - Found those consequences did not in themselves found disadvantage grievance - Applicant claimed disparity of treatment between herself and co-worker - Authority found applicant and co-worker’s circumstances quite different - Found each treated in accordance with respondent’s drug and alcohol policy based on individual circumstances - Found no disparity of treatment - Found respondent’s actions those of fair and reasonable employer - No unjustified disadvantage - COSTS - Unsuccessful personal grievance - Length of investigation meeting not specified - Having regard to parties submissions, case law and circumstances applicant to pay respondent $2,500 contribution to costs - Crane operator |
| Result | Application dismissed ; Costs in favour of respondent ($2,500) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] ERNZ 415 |
| Number of Pages | 11 |
| PDF File Link: | aa 379_08.pdf [pdf 47 KB] |