| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 166/10 |
| Hearing date | 22 Jul 2010 |
| Determination date | 25 August 2010 |
| Member | P Cheyne |
| Representation | S Burnhill ; P Zwart |
| Location | Christchurch |
| Parties | Thomson v MJD Haulage Ltd |
| Summary | RAISING PERSONAL GRIEVANCE - Respondent claimed applicant did not raise grievance within 90 days - Respondent claimed letter received from applicant’s solicitor was seeking information to determine if grievance should be raised not raising grievance itself - Authority found letter sufficient to raise grievance - Found grievance raised within time - UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent performed work for Toll under contract - Respondent employed applicant to do some of that work - Applicant had accident at work - Following standard post incident procedure applicant signed consent form and provided sample for drug test - Test positive - Toll received result and informed respondent applicant could not longer perform work for them - Parties had meeting at which applicant denied taking marijuana and disputed validity of test result - Applicant dismissed - Respondent suggested applicant take further drug test and if results negative respondent would ask Toll to reconsider - Applicant took two further tests; both of which were negative - Toll continued to refuse to allow applicant to perform work for them - Authority found respondent required employees to comply with Toll’s drug and alcohol policy - Found employment agreement (“EA”) provided that use of illegal drugs regarded as serious misconduct that could warrant summary dismissal - Subsequently parties found reference number of drug test did not match number of sample documentation - Authority satisfied by evidence provided that was clerical error and sample that tested positive was applicant’s - Found no reason to doubt validity of test result - Authority found respondent did not fully comply with own disciplinary process - However, found outcome would not have been different if proper process followed - Found to find dismissal unjustified because of departure from principles expressed in EA would be to subject respondent’s process to “pedantic scrutiny” - Found respondent’s willingness to ask Toll to reconsider position if applicant returned further negative test balanced element of pre-determination of dismissal decision - Authority found fair and reasonable employer would have dismissed applicant given positive drug test, clear provisions in EA about consequences of positive result, and Toll’s decision to prohibit applicant doing any of their work, which was only work available for applicant - Dismissal justified - Driver |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;Commissioner of Police v Creedy [2007] ERNZ 505;NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35 ; (1990) 3 NZELC 97,567 ; (1990) ERNZ Sel Cas 582;Wellington Road Transport etc IUOW v Fletcher Construction Co Ltd [1983] ACJ 653 ; (1983) ERNZ Sel Cas 59;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 11 |
| PDF File Link: | ca 166_10.pdf [pdf 33 KB] |