A construction worker who claims to have failed a workplace drug test due to eating cupcakes he did not realise were laced with cannabis has lost an appeal to have his job reinstated.

Jesse Kenmare appealed to the Employment Court to have his job temporarily reinstated while the Employment Relations Authority (ERA) investigated his dismissal.

The authority concluded that while there was a "tenable arguable case" for permanent reinstatement, Mr Kenmare's case for unjustified dismissal was stronger.

The court heard Mr Kenmare had worked for Fulton Hogan in the Nelson region from 2007, and his employment agreement carried a provision for random drug and alcohol testing.


Employment Court Judge Bruce Corkill heard evidence from Mr Kenmare that his positive cannabis test result followed the consumption of two cupcakes at a party.

He said he was unaware the cupcakes contained cannabis.

Mr Kenmare explained to the court that the weekend before the failed drug test this February, he had attended a party where on leaving he consumed two cupcakes. Unbeknownst to him, the cupcakes were laced with cannabis, he said.

Mr Kenmare told the court he didn't notice any impairment from the drug due to the excess alcohol he had consumed that night. It was only after failing the test that he discovered through his friend that he had taken cannabis, he said.

He told the court that the last time he had taken the drug was over the Christmas/New Year Period.

Following two meetings and related correspondence, Mr Kenmare's employer concluded that the recording of the positive result constituted serious misconduct justifying termination of his employment.

The court also heard that a friend of Mr Kenmare also consumed the laced cupcakes and similarly failed a drug test on his return to work that Monday.

However, when Mr Kenmare's employer called the managing director of the company his friend worked at, the director said the company hadn't conducted any random testing in recent months, and the allegations were therefore incorrect.

In his interlocutory judgement released this week, Judge Corkill declined to reinstate Mr Kenmare in his job while the ERA determined the outcome of their investigation.

Fulton Hogan refused to comment today.

"As this matter is yet to be heard by the ERA it would be inappropriate to make any comments," said human resource manager, Tony McCabe.

Mr Kenmare could not be reached for comment.