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Process Error In Dismissal Of Drug User Costs Employer Over $12,000

Published 19 Sep 2012


Mr O’Connell (OC) was employed full time by Consortium Construction Limited (CCL) as a carpenter for four years until he was summarily dismissed (i.e. without notice).

CCL’s dismissal letter states: "you have been found to be using illegal drugs in our workplace"

O’Connell complained that there was no investigation. He also denied using any illegal drug (marijuana) at work.

The Facts.
Mr Small, Mr. Murphy, and Mr OC were working on the third level of some scaffolding on a demolition site in the Christchurch earthquake area. Mr Small smelt cannabis and identified that it was coming from OC. OC was told to put it out and did so.

Mr Small apparently told a manager, Mr Whiting, that OC had grinned when questioned, admitted that it was something left over from the night before and treated it as something of a joke.

On the day of the dismissal Mr Whiting immediately told OC that he, OC, had been smoking cannabis on site and that his employment would end.

OC asked who had said this. He said what he did in his own time was his own business. Mr Whiting did not identify the source of the information but told OC what he did in company time was his (Mr Whiting’s) business.

The Authority member held: the Employment Relations Act 2000 provides that an employer who is proposing to make a decision that will have an adverse effect on the continuation of an employee’s employment must give that employee access to relevant information and an opportunity to comment on that information before making the decision. That is part of the statutory duty of good faith.
“In particular Mr O’Connell had no opportunity at that time to mitigate his conduct as accidental or by reference to his employment history”.

CCL asked, if the dismissal was unjust, could there be a 100% reduction in any award because Mr O’Connell had smoked marijuana at work putting himself and his co-workers at risk and putting CCL in jeopardy of a fine for an unacceptable safety risk.

The Authority accepted Mr Murphy had noticed the smell of marijuana, looked around, saw that others had noticed the smell, then looked towards Mr O’Connell who was grinning and smoking a roll-your-own. Mr Murphy asked Mr O’Connell if he was smoking marijuana. OC at first denied it but then said that he had rolled a bud into his tobacco.

The Authority held: “I also accept the evidence that Mr O’Connell said at the time that he had accidentally rolled a bud into his tobacco cigarette. There is nothing to indicate that Mr O’Connell was in fact impaired by marijuana while he was working”.

“Overall I consider that each party has contributed equally but in different ways to the circumstances giving rise to the grievance. As a result I will reduce the remedies awarded by 50%”.

CCL were ordered to pay compensation of $6,760 for lost income; and $6,000 for distress. A penalty of $1,000 for an illegal deduction on the final pay was also ordered.

Investigation is a very important part of disciplinary process. $13,000 plus legal fees is a relatively large sum, when one considers would the result have been any different if the investigation had been fully completed? 

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