| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 515 |
| Hearing date | 5 Jul 2011 |
| Determination date | 06 December 2011 |
| Member | K J Anderson |
| Representation | D Andrews ; M Beech, A Scott |
| Location | Tauranga |
| Parties | Rusling v B R & S L Porter Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant resigned or abandoned employment after failed drug test – Applicant informed respondent general manager (“C”) would probably fail drug test as had taken small amount of cannabis – Applicant undertook drug test and returned positive test for cannabis – Applicant attended meeting with C and respondent director (“P”) – Applicant claimed P said upside of failing drug test was that applicant now sacked – P and C accepted words to that effect were said – P and C claimed applicant stormed out of office before further discussion could be had – Authority found applicant dismissed at meeting – Found respondent entitled to implement disciplinary process regarding applicant following which dismissal could have been appropriate sanction – Found respondent failed to observe established principles in disciplinary procedure – Found respondent’s departure from fair and reasonable process was substantial – Dismissal unjustified – REMEDIES – 80 per cent contributory conduct – Found by failing drug test applicant substantially contributed towards situation that gave rise to grievance – $5,263 reimbursement of lost wages appropriate – Found no evidence on which compensation award could be based – Fleet Tyre Fitter |
| Result | Application granted ; Contributory conduct (80%) ; Reimbursement of lost wages ($5,263.46 reduced to $1,052.70) ; Costs to lie where they fall |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] ERNZ 415;Air New Zealand Ltd v V [2009] ERNZ 185;Auckland City Council v Hennessey (1982) ERNZ Sel Cas 4;New Zealand (with exceptions) Food Processing IUOW v Unilever New Zealand Ltd (1990) ERNZ Sel Cas 582 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Auckland_515.pdf [pdf 47 KB] |