| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 195/09 |
| Hearing date | 29 Oct 2009 |
| Determination date | 12 November 2009 |
| Member | P Cheyne |
| Representation | G Lloyd ; E Moore |
| Location | Christchurch |
| Parties | McLeod v Transfield Services (NZ) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct - Applicant pruning tree and failed to move safety anchor point to below piece of tree was cutting – When trunk toppled applicant fell to ground five metres below – Applicant tested for drugs and alcohol as per respondent’s drug and alcohol policy – Applicant conceded believed would test positive for cannabis – Positive test result – Applicant stood down – Second sample collected three days later also positive – Third sample taken two weeks later tested negative – Applicant permitted to return to work following negative result - Applicant initially claimed cannabis use medicinal but later admitted recreational – Following investigation and series of disciplinary meetings applicant dismissed for breaching policy – Applicant claimed under policy respondent should have referred applicant to substance abuse professional for assessment before dismissal - Authority found positive drugs test did not constitute serious misconduct but did violate policy - Found under policy respondent obliged to offer referral to substance abuse professional for assessment as part of investigating and deciding on specific circumstance relevant to decision to dismiss – Found with assessment and other relevant circumstances respondent could decide whether violation of policy amounted to serious misconduct warranting dismissal – Found fair and reasonable employer would have complied with policy and referred applicant for professional assessment before concluding frequency of cannabis use - Dismissal unjustified - Remedies – Authority found applicant not responsible for all of respondent’s failures to comply with policy – However, applicant’s level of culpability still significant – Found 50 percent contributory conduct – Applicant sought reinstatement – Found issue of reinstatement raised before dismissal so lack of position to be reinstated to should not count against claim - Found employment relationship not so harmed as to make reinstatement impracticable – Authority considered whether contribution should effect entitlement to reinstatement - Authority found over-riding requirement was to craft remedies that did justice to situation – Found respondent could not fairly have reached conclusions reached with information had – Found as applicant sought reinstatement and it was practicable just course was to reduce other remedies and allow reinstatement - Applicant unemployed for period then obtained some seasonal work and then further employment at lower rate – Respondent to reimburse applicant three months lost remuneration less earnings from alternative employment – Amount to be reduced by 50 percent for contribution - Little evidence provided in support of applicant’s compensation claim – Authority found would further recognise applicant’s contributory conduct to decline award of compensation - Vegetation worker |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages (3 months reduced to 1.5 months) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA s125;ERA s128(2);HSE |
| Cases Cited | Air New Zealand v V (2009) 9 NZELC 93,209;PPCS Ltd v Vakapuna unrelated, Couch J, 13 Dec 2007, WC 28A/07;Safe Air Ltd v Walker unreported, Couch J, 10 Jul 2009, CC 7/09;Waugh v the Commissioner of Police unreported, Goddard CJ, 4 Apr 2003, WC 12/03;X v Auckland DHB [2007] ERNZ 66 |
| Number of Pages | 11 |
| PDF File Link: | ca 195_09.pdf [pdf 40 KB] |