| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 152/10 |
| Hearing date | 24 Sep 2010 |
| Determination date | 28 September 2010 |
| Member | G J Wood |
| Representation | G Dewar ; P Macdonald |
| Location | Wellington |
| Parties | Gilbert v Hastie Services Ltd (t/a Cowley Refrigeration) |
| Summary | INTERIM INJUNCTION – Application for interim reinstatement – Applicant claimed unjustifiably dismissed by respondent after charged by Police with serious drug offences – Police alleged illicit drugs and drug paraphernalia found in applicant’s work vehicle, but substances not yet tested by Police – Subsequently applicant charged with number of drug offences – Applicant accepted bag in work vehicle belonging to girlfriend did contain drug paraphernalia – Respondent invited applicant to disciplinary meeting regarding Police charges – Police alleged applicant had admitted drug habit of three years and admitted supplying methamphetamine – Respondent told applicant if allegations substantiated would constitute breach of employment agreement and other policies – Applicant knew if claims upheld could be dismissed – Applicant denied all claims except that drug paraphernalia found in vehicle – Claimed drug paraphernalia property of girlfriend and not aware of contents of bag – Subsequently applicant’s counsel wrote to respondent in support of applicant keeping job – Respondent concluded dismissal necessary considering seriousness of charges – Respondent argued could not accept continued employment of someone believed to be acknowledged drug user as inconsistent with health and safety obligations and potentially brought company into disrepute – Applicant dismissed – Authority found applicant had arguable case of unjustified dismissal – Found applicant’s suspension without pay may constitute unjustifiable disadvantage in itself – Authority noted employer could not simply rely on Police investigations as sole ground for dismissal without conducting own investigations – Found respondent’s defence would need to centre on meetings parties had and evidence from manager that was a matter of comparing detective’s advice to respondent with applicant’s statements to it – Found use of respondent’s vehicle to commit drug offences was assessment to be made at criminal trial – Found factors regarding adequacy of damages fairly neutral – Respondent argued particularly concerned about health and safety risks of having alleged admitted drug user and supplier as employee – Found balance of convenience favoured respondent – Found significant factor in overall justice of case in terms of discretion to reinstate or not that statement came not from person with apparent grudge but senior member of Police – Found issue of drug paraphernalia found in applicant’s work vehicle together with any proven misconduct would need to be adequately explained before reinstatement ordered – Interim reinstatement declined – Refrigeration Technician |
| Result | Application dismissed ; No order for costs |
| Main Category | Injunction |
| Cases Cited | Hati v Auckland Farmers Freezing Co-op Ltd [1988] NZILR 667;Moore v Commissioner of Police [2001] 1 ERNZ 335 |
| Number of Pages | 7 |
| PDF File Link: | wa 152_10.pdf [pdf 22 KB] |