| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 9 |
| Hearing date | 31 Aug 2010 |
| Determination date | 17 January 2011 |
| Member | H Doyle |
| Representation | M Thomas ; G Malone |
| Location | Invercargill |
| Parties | Slade & Anor v South Pacific Meats Ltd |
| Other Parties | Pikia-Gillies |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicants’ claimed dismissal substantively and procedurally unjustified – Respondent argued applicants made admission to drug dog handler that had smoked marijuana during work break and positive drug test results received – Respondent argued applicants required to sign declaration requiring undertaking of drug test at any time and positive test could result in dismissal – Authority found evidence did not support declaration part of collective employment agreement at time – Respondent argued made clear to employees during induction process drug use not acceptable in workplace and positive test could result in dismissal – Found applicants knew if found under influence of drugs could be dismissed – Found applicants knew not acceptable to attend work under influence of drugs – Found circumstances of case and drug tests undertaken arose from circumstances other than suspicion through recreational use – Dog handler (“W”) informed respondent that concerned about applicants returning to work because had admitted smoking marijuana during work break – Subsequently respondent called applicants to meeting to discuss drug use – Found no unfairness in calling applicants to meeting – Applicants’ told respondent did not admit drug use to W – Applicants consented to drug testing – Positive test results received and applicants advised – Authority found applicants not advised of actual levels – Found only after dismissal that levels requested and made available – Found discrepancy between applicants’ accounts relied on by respondent, however, discrepancy not put to applicants for comment – Found fair and reasonable employer would not have concluded W lied – However, fair and reasonable employer faced with denial from applicants would have returned to W for explanation – Found fair and reasonable employer would have considered matters respondent did in terms of rehabilitation – Found information such as demeanour and physical appearance, and odour of smoke when intercepted by W not put to applicants – Dismissal unjustified – REMEDIES – Found information ascertained after dismissal strengthened substantive justification for dismissal – Found on balance of probabilities applicants’ smoked marijuana during break and when returned were under its influence, and had they not been suspended would have worked in that state – Found 100 percent contributory conduct – No remedies to be awarded |
| Result | Application granted ; 100 percent contributory conduct ; No remedies awarded ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Christchurch_9.pdf [pdf 34 KB] |