| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 180/10 |
| Hearing date | 30 Mar 2010 - 12 Apr 2010 (2 days) |
| Determination date | 20 April 2010 |
| Member | R A Monaghan |
| Representation | R Bianchi ; P Treweman |
| Location | Auckland |
| Parties | Riley v Acrow Limited |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct - Applicant and co-worker (“W”) took longer than expected to arrive at job site for urgent job – Respondent investigated and found based on GPS records 35 minutes unaccounted for – When branch manager (“L”) questioned why trip took so long applicant replied did not know as had not been driving – Applicant’s response not accepted and heated discussion ensued – Shouting attracted attention of respondent’s general manager who made comment about applicant’s competence – Vehicle applicant and W used previous day found to smell of marijuana during routine vehicle check – Applicant and W asked to take drug test – W’s test negative – Applicant refused to take test until obtained union advice – Applicant suspended on pay - Respondent’s zero tolerance drug and alcohol policy allowed for possibility of dismissal if testing refused – Applicant’s evidence had not attended workshop on policy accepted – Applicant did agree to undergo test following day - Applicant unable to explain unaccounted for time and smell of marijuana – Respondent found refusal to undergo test amounted to serious misconduct - Applicant summarily dismissed – Authority accepted refusal to undergo drug test could amount to serious misconduct under respondent’s policy – However, found was more to circumstances than simple refusal - Found L went too far in relying on zero tolerance policy – Found relying on initial refusal ,when associated with attempt to obtain advice and rescinded next day, not actions of fair and reasonable employer in all circumstances - Dismissal unjustified - Remedies – Authority found contributory conduct - Found applicant’s explanations for events leading to requirement to undergo drug test unsatisfactory – Found contributed to circumstances giving rise to grievance - Applicant obtained new employment at lower rate almost immediately – Found but for contributory conduct would have awarded one day’s pay plus difference between wage rates for a period – Taking contributory conduct into account reimbursement of one day’s lost wages awarded – Found part of injury to feelings claimed by applicant related to initial discussion about unaccounted for time and criticism of performance – Found did not directly relate to personal grievance - Found applicant aggrieved at not having opportunity to clear name - Found evidence of injury at lower end of scale – Taking contributory conduct into account $3,000 compensation appropriate - Leading hand scaffolder |
| Result | Application granted ; Reimbursement of lost wages ($201.88) ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 8 |
| PDF File Link: | aa 180_10.pdf [pdf 27 KB] |