Hayllar v The Goodtime Food Company Ltd Nzempc Wn

• Jurisdiction: New Zealand
• Judge: A D Ford
• Judgment Date: 06 September 2012
• Court: Employment Court
• Docket Number: WRC 28/11
• Date: 06 September 2012

IN THE MATTER OF proceedings removed from the Employment Relations Authority

BETWEEN

Leith Hayllar

First Plaintiff

And

Andre Matene

Second Plaintiff

and

The Goodtime Food Company Limited

Defendant

[2012] NZEmpC 153

WRC 28/11

WRC 29/11

IN THE EMPLOYMENT COURT WELLINGTON

Personal grievance claims for unjustifiable dismissal after plaintiffs were required to undergo drugs tests which returned positive result for cannabis use — plaintiffs worked as bakers for defendant –defendant had introduced a drugs and alcohol policy which provided for drug testing for reasonable cause — on returning first positive test, plaintiffs began participating in rehabilitation programme — plaintiffs were dismissed following a second drug test for breaching their rehabilitation contracts “knowing the consequences” — plaintiffs never removed from work although that was required by drugs policy — whether plaintiffs were justifiably dismissed pursuant to s103A Employment Relations Act 2000 (test of justification).

Appearances:

Alan Cressey, counsel for the plaintiffs

Gary Tayler, advocate for the defendant

JUDGMENT OF JUDGE A D Ford

Introduction

1 In a determination 1 dated 22 September 2011, the Employment Relations Authority (the Authority) ordered the removal of the plaintiffs' employment relationship problems in their entirety for hearing at first instance in this Court without the Authority investigating them. The Authority ordered the removal at the request of counsel for the plaintiffs. In doing so it stated that the case involved

questions of law which were “very important in terms of the operation of drug and alcohol policies”. 2

2 In a minute dated 30 November 2011, Chief Judge Colgan ordered by consent that the separate personal grievances would be heard together, “because the essential issues for which they have been removed to the Court are the same in each case, although the circumstances of the individual plaintiffs differ.”

3 The first plaintiff, Mr Leigh Hayllar, claims that he was unjustifiably dismissed by the defendant on 4 August 2010 after being required to undergo a drugs test on 13 July 2010 which returned a positive result for cannabis use. The second plaintiff, Mr Andre Matene, claims that he was unjustifiably dismissed by the defendant on 13 August 2010 after being required to undergo a drugs test on 10 August 2010 which returned a positive result for cannabis use.

4 In each case, the drugs test resulting in the dismissal was a second test. Mr Hayllar had undergone a drugs test on 18 March 2010 which had returned a positive result for cannabis use and Mr Matene had undergone an earlier test on 30 April 2010 which had also returned a positive result for cannabinoids.

5 In its statement of defence, the defendant denies the allegations made by the plaintiffs and pleads in relation to both claims that the plaintiffs were justifiably dismissed for breaching their rehabilitation contracts “knowing the consequences.” Alternatively, it is pleaded that the plaintiffs' contributory fault disentitled them to any remedies and as a further alternative, it is pleaded that failing a finding of contributory fault, the plaintiffs “should not as a matter of equity and good conscience” be awarded any remedies.

Background

6 The defendant company (Goodtime) is a bakery based at Napier. The majority shareholder and managing director is Mr Phil Pollett. The company which at the date of the hearing had 50 employees has been in business for 34 years.

7 Mr Hayllar, who is 30 years of age, commenced working for Goodtime on 1 November 2006 as a baker. He and his partner have two children, a boy aged seven and a girl aged four. In August 2008, Mr Hayllar was promoted to leading hand. The terms and conditions of his employment were set out in a written individual employment agreement dated 12 August 2008. It does not appear that there was any earlier written employment agreement. As leading hand, Mr Hayllar was responsible for running the pastry pie line. In that capacity he supervised approximately 10 staff.

8 Mr Matene is 34 years of age. He commenced working for Goodtime on 3 November 2008 as a baker. He and his partner have a young son. The terms and conditions of Mr Matene's employment were set out in a written individual employment agreement dated 31 October 2008.

9 In about March or April 2007, Goodtime introduced a drugs and alcohol policy (the drugs policy) for its workforce. The policy did not provide for random testing but testing for reasonable cause. Rather confusingly, the phrase “reasonable cause testing” appears to have two definitions. On page 1, in the introductory part of the drugs policy, which is meant to contain the manager's signature, the definition reads:

Reasonable Cause Testing

Employees may be tested for the presence of drugs or alcohol where their actions, appearance, behaviour or conduct suggests drugs or alcohol may be impacting on their ability to work effectively and safely

Then in cl 8 of the body of the drugs policy, the definition reads:

8. REASONABLE CAUSE TESTING

An employee may be tested for drugs/alcohol where the employee's appearance, actions, or behaviour suggest that they may be affected by drugs/alcohol.

There is no explanation provided for the different definitions.

10 At this point it is necessary for me to explain more about the pleadings and the referral by the Authority. In identifying the important questions of law which formed the basis of its decision to remove both matters to the Court for hearing and determination, the Authority noted that the plaintiffs' application had “identified no less than 17 alleged questions of law, or factors that mightgive rise to removal under the public interest and urgency grounds.” 3 It went on to state:

[10] I agree with Mr Cressey that there are important questions of law here because the Court will be able to provide guidance to employers and employees about how drug testing should be implemented. In particular, it is an important issue as whether or not an employer such as Good Time Foods must prove, by calling direct evidence, that all aspects of the drugs policy, including all employee safeguards, were complied with and whether, if an employer fails to provide proper and adequate training and education as specified by its policies, the policies remain valid and enforceable. Of lesser significance, but also a potentially important question of law, is whether, if an employee is requested to undergo a drugs test, the employer is required to disclose the basis for that request (including any evidence on which it is based) and provide the employee with an opportunity to comment before any such request is made. All are central issues in the determination of these cases.

11 In his submissions, Mr Cressey, counsel for the plaintiffs, elaborated on a number of allegations made in the respective statements of claim about the introduction and operation of the drugs policy. It is alleged that the drugs policy was introduced by Goodtime in April 2007 via the company's Policy Manual as a “lawful and reasonable instruction” but it had not been accepted by the plaintiffs and, therefore, had never become a contractual term of their employment. It is also alleged that in breach of its obligations under the drugs policy, the defendant failed to provide an educational programme and training in recognition of drug and alcohol misuse. Another allegation is that the drugs policy “lay unused and abandoned” between its introduction on 13 April 2007 and 18 March 2010 when Mr Hayllar was tested for the first time and that the defendant had an obligation to advise staff before its implementation. There are also allegations made about the conduct of the first drugs test each plaintiff was required to undergo and it is pleaded that the tests were “unfair and unjustified” because, inter alia, the decision to carry them out had been “pre-determined”.

12 The difficulty with the pleadings and submissions relating to these matters is that they deal with issues which are not part of the unjustified dismissal grievance before the Court. As the Court of Appeal noted in Waikato District Health Board v Clear

, 4 s 114(1) of the Employment Relations Act 2000 (the Act) provides that a personal grievance must be raised within 90 days from the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee and, without the consent of the employer or leave from the Authority or the Court, there is no jurisdiction to determine an alleged personal grievance occurring prior to the limitation cut-off date

13 It was not pleaded or claimed in submissions that the earlier complaints were so related to the second drugs tests and the dismissals in August 2010 that they constituted one related and continuous cause of action or course of related conduct so as to bring them within the limitation period in terms of the observations made by Chief Judge Colgan in Premier Events Group Ltd v Beattie (No 3). 5 In any event, I would not have upheld any such submission. The statement of problem before the Authority, which was the matter transferred to this Court pursuant to s 178 of the Employment Relations Act 2000 (the Act), related solely to the alleged unjustified dismissals in August 2010 which in turn were based on the second drugs tests. The second drugs tests were in themselves discrete events which broke the chain of causation between the earlier alleged grievances or complaints and the dismissals. Significantly, no disadvantage grievance was raised by either plaintiff in relation to the first drugs tests. In any event, I am satisfied on the facts that the defendant's drugs policy was validly introduced and was binding on both plaintiffs. The evidence was that Mr Hayllar was on Goodtime's Health and Safety Committee in 2007 when the committee introduced the drugs...