| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 399/09 |
| Hearing date | 17 Sep 2009 |
| Determination date | 11 November 2009 |
| Member | V Campbell |
| Representation | S Scott ; M Flyger |
| Location | Auckland |
| Parties | Ferguson and Anor v Vehicle Maintenance Ltd |
| Other Parties | Sutcliffe |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicants dismissed for refusing to take drug test - All respondent’s employees called to meeting and told drug tests would be undertaken in 10 minutes - Employees told positive result would not lead to dismissal but refusal to undergo test would be considered serious misconduct resulting in dismissal - Applicants refused to undertake test and challenged respondent’s right to force taking of test - Applicants received letters saying if did not take test by end of day would be dismissed - Request to have drug test first time applicants knew respondent intended to implement random drug testing regime - Respondent argued decided to implement random drug testing following workplace accident - Respondent claimed that having advised employees of policy and consequences did not require all employees “buy into” it - Authority distinguished present case on its facts from Employment Court case where employee “buy in” discussed - Authority found respondent failed to consult with employees about drug testing policy - Found policy implemented without discussion with employees - Found respondent’s actions not those of fair and reasonable employer - Found fair and reasonable employer would have put properly documented proposal to employees and sought feedback before notifying policy to be implemented - Dismissals unjustified - Remedies - No contributory conduct - First applicant found new employment five weeks after dismissal - Reimbursement of five weeks lost wages awarded - No evidence provided to support claim for difference between previous pay rate and lower pay rate at new job - Authority unable to make award - First applicant provided little evidence of affect of dismissal - First applicant claimed humiliated and embarrassed to tell friends and family been dismissed after four years employment - $5,000 compensation appropriate - Second applicant found new employment nine weeks after dismissal - Reimbursement of nine weeks lost wages awarded - Second applicant provided little evidence of affect of dismissal - Second applicant claimed humiliated and embarrassed to tell friends and family been dismissed - Authority took into account short length of applicant’s employment - $3,000 compensation appropriate - Foreman/Maintenance diesel mechanic |
| Result | Application granted ; Reimbursement of lost wages (Five weeks)(First applicant) ; Interest (4.8%) ; Reimbursement of lost wages (9 weeks)(Second applicant) ; Interest (4.8%) ; Compensation for humiliation etc ($5,000)(First applicant) ; Compensation for humiliation etc ($3,000)(Second applicant) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s124 |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] ERNZ 415;Cammish v Parliamentary Service [1996] 1 ERNZ 404;Maritime Union of New Zealand Inc & Ors v TLNZ Ltd & Anor (2008) 8 NZELC 99,181;NZ Amalgamated Engineering Printing and Manufacturing Union Inc and Ors v Air New Zealand Ltd and Anor [2004] 1 ERNZ 614;Salt v Fell, Governor for Pitcairn, Henderson, Ducie and Oeno Islands [2006] ERNZ 449;Toll New Zealand Consolidated Ltd v Rowe [2007] ERNZ 840;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 9 |
| PDF File Link: | aa 399_09.pdf [pdf 41 KB] |