Keith Hooper v Coca-Cola Amatil (NZ) Ltd
 NZEmpC 11
IN THE EMPLOYMENT COURT CHRISTCHURCH
IN THE MATTER OF a challenge to a determination of the Employment Relations Authority
Tim Oldfield, counsel for the plaintiff
Mark Lawlor and Tania Fletcher, counsel for the defendant
Challenge to determination of Employment Relations Authority that plaintiff was not unjustifiably dismissed after failing drug test — collective agreement provided for drug testing for cause but not random drug tests — employee was recreational drug user outside work but there was no credible evidence of drug use at work and no recent performance issues — drug test undertaken several months after receipt of whistleblower's statement at a time the company was testing other employees in unrelated incidents — plaintiff was not given information relevant to dismissal (evidence of whistleblower and private investigator) — incorrect information regarding evidence presented by employer at disciplinary hearing — whether dismissal procedure met the test of justification under s103A Employment Relations Act 2000 (“ERA”) (what fair and reasonable employer would have done) — whether s6 Protected Disclosures Act (disclosing employee wants information protected) applied to allow withholding of information — whether employee's use of marijuana had contributed to his loss.
The issues were: whether the dismissal procedure followed by the employer met the test of justification in s103A Employment Relations Act 2000 (“ERA”); whether s6 Protected Disclosures Act (disclosing employee wants information protected) applied to allow the withholding of the whistleblower's information; and whether H's use of marijuana had contributed to his loss.
Held: The collective agreement did not provide for random drug testing but only allowed testing for cause. CCA Ltd's managerial prerogative in relation to drug testing was therefore subject to that express requirement. The test result could not be relied on to retrospectively validate the testing process if the process was fundamentally flawed through the absence of a prior reasonable cause to test.
CCA Ltd had admitted that it did not have reasonable cause to require H to undergo the drug test at the time it had. None of the incidents referred to were sufficient to establish reasonable suspicion. The decision to drug test H had been made in response to information received from a whistleblower several months prior to the actual drug testing. If CCA Ltd had suspicions, it should have required H to undergo the drug test at the time they were raised, rather than several months later. Instead it included him in a group of employees who had been implicated by other whistleblowers, who had named other employees but not H. The company was effectively carrying out a random drug test by stealth.
CCA Ltd failed to share information with H that was relevant to his dismissal. This resulted in a breach of its good faith obligation under s4(1A)(c) ERA (provide access to information and give opportunity to comment before dismissal). H did not have a real opportunity to adequately consider the allegations and respond to them. The opportunity under s4(1A)(c) “had to be real and not limited by the extent of the information made available by the employer” ( ).
There was no compelling evidence before the Court that the whistleblower wanted his disclosure to be protected under s6(1)(d) Protected Disclosures Act 2000 (disclosing employee wants information protected). In view of the lack of this evidence, this could not be grounds for saying the information could not have been given to H. If the company was claiming a moral obligation to protect the employee, the statement could have been redacted. CCA Ltd had to balance 18 years of service against the inherent unreliability of information from the whistleblower (it had been based on double hearsay). A fair and reasonable employer would have made every effort to give H the thrust of the allegations prior to the disciplinary meeting.
CCA Ltd acted contrary to its obligations under s4(1)(b) ERA (duty of good faith not to do anything that would mislead or deceive) by presenting misleading or incorrect information at the disciplinary hearing about the private investigator's evidence. The investigator had acknowledged that portions of his report were incorrect. This was a very serious breach.
The procedural defects were not minor matters, but were issues of substance which struck right at the heart of the justification for dismissal. In terms of the s103A ERA test of justification, CCA Ltd's actions and how it acted, were not what a fair and reasonable employer would have done in all the circumstances at the time of the dismissal.
H was a long serving employee and had been shocked by his dismissal. However the reality was that if the company had ever had genuine cause to require him to undergo a drug test, he would be aware that he was likely to fail it. He knew he was taking a risk and the impact of the dismissal would not have been as serious as it might otherwise have been. The award for non-economic loss was therefore $4,000. However H could not be viewed as having contributed to his dismissal. The drug test was carried out in breach of the employment agreement and the positive result would not have occurred but for this. H's continued use of cannabis did not contribute to the situation leading to his grievance.
JUDGMENT OF JUDGE A D Ford
Mr Keith Hooper was employed by the defendant at its Woolston plant in Christchurch as a syrup maker. He was dismissed on 4 March 2010 after failing a urinary drugs test which returned a positive result for cannabis use. The test recorded a THC-Acid level of 300 nanograms per millilitre (ng/ml). The relevant cut-off level, as prescribed in the current Australia and New Zealand standards, 1 is 15ng/ml.
There was no dispute as to the test results. Mr Hooper freely admitted to being a recreational cannabis user and having smoked marijuana every day outside of work for 20 years. A medical expert called as a witness on his behalf told the Court that Mr Hooper's cannabis use “is better described as chronic rather thanrecreational.” The same witness said that he would be very surprised if somebody smoking daily scored below 300 because, in his experience, most daily users would score somewhere between 1, 000 and 3,000.
The essence of the plaintiff's case is that, in all the circumstances, he was not treated fairly. As his counsel, Mr Oldfield, expressed it: “The defendant's dismissal process was grossly unfair, breached good faith and the dismissal was effected in breach of statute. These were not mere procedural peccadilloes; they strike right at the heart of the justification for dismissal.”
Counsel for the defendant, Mr Lawlor, accepted that the central issue in the case is whether the defendant's decision to dismiss was consistent with what a fair and reasonable employer would have done in the circumstances. He invited the Court to conclude that procedural failings on the part of the defendant were not sufficient to render the dismissal unjustified.
In its determination, 2 the Employment Relations Authority (the Authority) rejected Mr Hooper's claim. In this proceeding, Mr Hooper has challenged the whole of that determination de novo.
Mr Hooper is 37 years of age. At the time of his dismissal he had been working for Coca-Cola for approximately 18 years having joined the company after leaving college. In evidence he told the Court about what he referred to as his “colourful days” in the 1990s when he consumed alcohol and smoked marijuana. He admitted to having developed a drinking problem and having received “a couple” of written warnings for turning up to work drunk. Although the date was not pinpointed, the plant manager at the time arranged for him to undergo a six to seven month alcohol awareness course conducted by the Salvation Army. The result was that he gave up alcohol and retained his job. He said that he continued to smoke marijuana but only on a recreational basis outside of work.
Thereafter Mr Hooper's work record appears uneventful. In approximately 2005 he was promoted from production to the syrup room. As a syrup maker heenjoyed greater responsibilities having to make up syrup recipes for the 15 different products produced at the plant. In August 2006, Mr Hooper suffered an injury while at work in the syrup room. He was handling chemicals and there was a spill leading to burns to his leg. He was off work for three days. The cause of the accident was found to be partly Mr Hooper's fault and partly the result of unsafe conditions (a broken pump). There was no evidence of any other accident in the course of Mr Hooper's 18 years of employment with the company.
At all material times, Mr Hooper was a member of the Service and Food Workers Union and the terms and conditions of his employment were those contained in the relevant collective employment agreement made between that union, the Engineering, Printing and Manufacturing Union and the company (the collective agreement). Up until 2008 the collective agreement was silent in relation to drugs. In July 2007, the company introduced a formal Drug and Alcohol Policy which provided (inter alia) that employees should be drug free and alcohol free while at work. Employees were prohibited from working under the influence of an illegal drug or in an impaired...
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