| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 195/10 |
| Hearing date | 18 Nov 2010 |
| Determination date | 07 December 2010 |
| Member | D Asher |
| Representation | T Kennedy ; S Davies |
| Location | Wellington |
| Parties | Toatoa v City Line NZ Limited t/a Valley Flyer |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably disadvantaged by respondent discontinuing offer of Alcohol and Drug Policy (“Policy”) and Rehabilitation Contract (“Contract”) – Also claimed unjustifiably dismissed – Policy and Contract administrative provisions adopted by respondent and not contained in Collective Employment Agreement – Applicant invited to meeting and asked to undergo, via Policy, alcohol and drug test – Applicant suspended for failure to follow reasonable and lawful instruction when refused to undertake test – Applicant subsequently consented to take test – Suspension lifted but applicant never returned to work – Applicant’s union raised unjustified disadvantage grievance claiming request for applicant to undergo test not lawful – Positive test result for cannabis – Applicant admitted consuming cannabis two days before test – Applicant signed Contract – Second and third tests also confirmed cannabis use – Respondent sought another meeting with applicant to investigate applicant’s commitment to rehabilitation plan – Applicant claimed attended party where unintentionally took food laced with drugs – Respondent produced testing comparison report – Respondent advised applicant did not have trust and confidence in applicant and dismissed – Respondent argued decision to set aside Contract and resume disciplinary process justified as was decision to dismiss applicant – Authority found unjustified disadvantage grievances regarding suspension and drug testing requirements raised appropriately – Found applicant not unjustifiably disadvantaged by respondent’s decisions to request testing or make suspension – Found positive test results justified respondent’s reasonable cause decision and decision to unilaterally suspend applicant – No unjustified disadvantage – Question whether because of second positive test respondent able to revive or initiate entirely new disciplinary process, which resulted in applicant’s termination – Authority found some of respondent’s grounds alleged to justify dismissal did not withstand scrutiny – Found no evidence provided that applicant’s continued employment would put others at risk – Found applicant did not admit attending 5 day party but gave evidence that unintentionally ingested cannabis at party – Found no evidence respondent instructed applicant to be available at short notice to meet if required – However, fundamental to respondent’s decision to dismiss was respondent’s view that applicant not truthful and not committed to performance plan causing loss of trust and confidence – Found respondent had on balance of probabilities reason to question applicant’s account for testing positive on second occasion – Found respondent able to recommence disciplinary action which culminated in applicant’s dismissal – Found in event applicant unjustifiably dismissed, contributory conduct would mean no remedies available – No unjustified dismissal – Driver |
| Result | Applications dismissed (Disadvantage) (Dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s114;ERA s124 |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;Graham v Airways Corporation of New Zealand Ltd [2005] ERNZ 587;Parker v Silver Fern Farms Ltd [2009] ERNZ 301;Salt v Fell, Governor for Pitcairn, Henderson, Ducie and Oeno Islands [2008] ERNZ 155;Zendel Consumer Products v Henderson [1992] 2 ERNZ 377 |
| Number of Pages | 16 |
| PDF File Link: | wa 195_10.pdf [pdf 71 KB] |