| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 171 |
| Hearing date | 8 Dec 2010 |
| Determination date | 28 April 2011 |
| Member | K J Anderson |
| Representation | N Perry, M Lajeunesse ; J Rooney |
| Location | Whangarei |
| Parties | Watts v Fonterra Cooperative Group Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant dismissed after discovery of drug paraphernalia in vehicle - Another employee claimed discovered drug paraphernalia on seat of truck – Team leader (“S”) checked records and found applicant had been driving truck immediately before – When summoned to S’s office, applicant confirmed owned apparatus – S claimed applicant said item for home use and what applicant did at home should not concern respondent – Applicant claimed admitted to S had smoked marijuana couple of months ago but never during work hours – S denied told applicant “nothing further would come of it” – Authority found evidence of S more probable – Applicant stood down pending investigation outcome, but drove morning of first meeting – Driver Performance Assessor (“G’) claimed applicant still drove as S inexperienced team leader and applicant should have been stood down immediately – Applicant attended meeting with union representative (“H”) – G claimed applicant admitted owned apparatus, never used at workplace and had not smoked cannabis for last two months – Applicant said would undergo drug test but G told applicant not necessary – Meeting ended on understanding applicant would be suspended pending formal investigation – Applicant told could give respondent explanation and matter could result in dismissal at second meeting – Applicant attended meeting with two union representatives – G claimed applicant said used cannabis while separated from family but lifestyle changed since back home – G claimed applicant confirmed owned apparatus but had not been used for cannabis – G claimed reminded applicant had previously admitted apparatus used for cannabis – G claimed applicant responded apparatus in new condition and could be used for fishing, no explanation given for changed story – G noted at third meeting did not make sense applicant remorseful if apparatus fishing equipment – Respondent claimed dismissed as doubted applicant’s honesty and integrity and serious health and safety concerns given nature of job – H challenged respondent’s decision to dismiss applicant – H claimed applicant should be placed on random drug testing programme while continued employment in accordance with collective agreement (“CA”) – Respondent noted relevant CA provisions presumed employee self identified as having drug problem – Authority found CA provisions relied on employees self identifying had problem – Respondent called applicant to confirm dismissal as applicant could not attend further meeting – Dismissal confirmed in writing – Applicant claimed did not receive letter and first saw it at mediation week later – Authority noted letter not addressed to applicant’s home address – Found onus on respondent to ensure applicant received letter – Applicant claimed dismissal by phone call inconsistent with CA – Applicant claimed two days before dismissal underwent drug test with negative result – Authority noted applicant did not inform respondent of test or attempt to obtain result before dismissal – Applicant claimed unaware respondent thought matter serious as applicant allowed to drive and applicant advised drug test unnecessary – Found applicant satisfied with advice and assistance of Union throughout process – Noted respondent’s first letter to applicant stated matter serious and could result in dismissal – Found respondent allowing applicant to continue driving and refusing applicant’s offer of drug test did not indicate respondent did not consider matter serious – Applicant claimed further investigation required by respondent – Authority noted applicant changed position about use of apparatus – Found applicant’s evidence apparatus used for fishing less credible than applicant’s earlier admission and given nature of applicant’s job dismissal was decision of fair and reasonable employer in all circumstances – Applicant claimed respondent breached CA as did not offer applicant rehabilitation or assistance – Authority found CA provisions not applicable as applicant did not self identify had drug problem – Authority found telephone call by respondent informing applicant of dismissal breached CA but did not lead to applicant being treated unfairly or unreasonably – Dismissal justified - Milk Tanker Driver |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand v Hudson [2006] ERNZ 415;Air New Zealand v V [2009] ERNZ 185 |
| Number of Pages | 16 |
| PDF File Link: | 2011_NZERA_Auckland_171.pdf [pdf 59 KB] |