| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 201/08 |
| Hearing date | 24 Jun 2008 - 25 Jun 2008 (2 days) |
| Determination date | 23 December 2008 |
| Member | P Montgomery |
| Representation | B Fletcher ; L Radich |
| Location | Blenheim |
| Parties | Bush v Marlborough Lines Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unfairly dismissed after drug test found presence of amphetamine class substance in applicant’s system – First incident where respondent argued applicant failed to provide medical certificates for absences – Applicant claimed provided medical certificates for depression caused by separation from children – Second incident where applicant failed to arrive at work and respondent’s manager noticed applicant smelt of alcohol after picking applicant up from home – Manager instructed applicant not to operate machinery and reported incident to managing director – Applicant called to meeting where explained consumed alcohol night before but maintained would not impact work performance – Managers explained would dismiss if repeat performance – Third incident occurred where applicant arrived at work in casual clothes – Applicant to attend first aid course later that day – Applicant directed to maintenance work before course began but refused claiming left work clothes at home – Supervisor gave evidence that applicant “didn’t seem to be with it” and “wouldn’t help with maintenance” – Disciplinary meeting held where applicant agreed to undertake drug test through independent health nurse – Third disciplinary meeting held where test results put to applicant – Respondent argued decision to dismiss made on evidence of positive result for amphetamine class drug and background of previous warnings – Applicant’s partner (“H”) sought copy of test report but told not available – H argued applicant taking Sinutab and asked if had any effect – H claimed told by manager that Sinutab did not effect result because level detected in applicant’s system very high – H argued manager said if negative result from second test then would discuss matter with view to giving job back – H obtained second urine sample test and negative result returned, however, respondent unwilling to discuss applicant’s employment – Authority found respondent genuinely believed drug test warranted and secured agreement of applicant – However, failed to have registered medical practitioner undertake test – Industrial nurse conducted test and told respondent that amphetamine reading high – Clear from evidence that steps taken following return of positive test moving promptly to dismissal and not steps outlined in employment agreement (“EA”) – Expert evidence of (“B”) that Sinutab contained amphetamine class substance likely to show in urine sample taken at time of Sinutab use – Authority satisfied presence of amphetamine class substance in urine sample explained by Sinutab medication – Lack of amphetamine in second sample confirmed evidence of B that dosage relatively low and passed through system quickly – Authority also found respondent failed to take heed of statements that results were “unconfirmed results” and not “suitable for medico/legal purposes” – Authority concluded respondent’s representatives misunderstood test results and failed to take professional advice on results before dismissing applicant – Clear that previous warnings formed basis of respondent’s reasoning when considered test results – Respondent entitled to request applicant undergo drug testing but failed to carry out process in accordance with EA – Dismissal unjustified – REMEDIES – Authority found contributory conduct regarding preliminary elements which led to dismissal – Contributory conduct 20 percent – $5000 compensation appropriate – Arborist |
| Result | Applicant granted ; Reimbursement of lost wages ($10,706) ; Compensation for humiliation etc ($5000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124 |
| Number of Pages | 9 |
| PDF File Link: | ca 201_08.pdf [pdf 40 KB] |