Ripeka Baker was sacked after she avoided, and then refused, to undergo a drug test.
Ripeka Baker was sacked after she avoided, and then refused, to undergo a drug test.
When a manager for one of the country’s largest Kiwifruit packing companies was randomly asked to take a drug test, she instead left the site and went to a cafe, where she checked the work cameras and did not return until the drug testing van had left.
Ripeka Baker thenrefused another test the following day.
Baker was sacked from her job at EastPack Limited for serious misconduct, namely failing to undergo a drug test.
But she rejected the company’s allegation that she avoided or delayed taking the first test and believed she was not legally obliged to undergo the second.
She took her grievance to the Employment Relations Authority (ERA), claiming she had been unjustifiably dismissed and sought compensation accordingly.
The authority’s decision was released this month following investigation meetings held on the matter earlier this year in Tauranga.
The decision said Baker worked at the Kiwifruit packing company’s Ōpōtiki site in a “safety-critical” role as an assistant coolstore manager.
Her employment agreement provided for her to undergo random drug tests and stated avoiding or refusing the test would constitute serious misconduct, which could lead to dismissal.
On August 9, 2021, Baker arrived at work around 7.30am before then leaving to visit another EastPack site.
While she was out, the drug detection van arrived onsite.
Security cameras on site recorded Baker returning around 9.15am, driving past the drug detection van to the staff carpark.
Baker rang reception, saying she was at the local service station, when she was actually in the staff carpark, and asked for assistance with the work fuel card. Only minutes later, she drove off-site again.
Baker worked for Kiwifruit packing company EastPack Limited.
Shortly after, Baker returned, once more driving past the drug detection van. Around 9.30am, her manager phoned and advised she had been selected to undergo a random drug test and that she should report to the drug detection van.
But, instead, she immediately left work and went to a local cafe to have breakfast.
Baker had managerial access to the on-site security cameras and while at the cafe, she logged into the camera feed and viewed the footage showing the drug detection van, the decision said.
Around 9.40am, Baker’s manager called her to ask when she would be returning to work to take the drug test.
She said she would not be returning as she was having breakfast and was feeling “harassed”.
The drug detection van left around 10am and 10 minutes later, Baker returned to site.
She was unable to explain why she took time off work to have breakfast in the middle of the morning or why she twice returned to site and then left.
Bakers’ manager spoke with her about her missing the random drug test. She agreed that she would take the test the next time the van was on site.
She was also issued a letter requiring her to attend a disciplinary meeting to explain her responses to allegedly not making herself available for the test that day.
The following day was Baker’s rostered day off but her manager asked her to work and she agreed.
Around lunchtime, the drug detection van returned, for reasons unrelated to Baker, the ERA decision said.
Her manager asked her to go to the van to complete her random drug test but Baker refused.
Eastpack then commenced a disciplinary process, on the grounds that she had “avoided” taking a drug test, and refused to take a drug test the following day.
Baker refuted the allegations, saying she had not avoided it in the first instance as she had not been given sufficient time to return to work.
Eastpack’s own policy required her to be given one hour to complete the test.
Baker also stated she had a reasonable explanation for her accessing the security cameras from the cafe.
She told the ERA she was keeping an eye on contractors.
But EastPack’s evidence was that watching them from offsite was not the usual procedure, nor usually required, and the job performed by the contractors was brief and did not require extensive off-site monitoring.
In regards to the following day, Baker argued she could not be asked to undergo a random test on a day when she was not scheduled to be at work, and so it was not a “lawful and reasonable instruction”.
She also submitted she felt “confused and misled” by her manager’s use of the word “random”, and had not connected the request to the agreement she made the previous afternoon to take a test.
Baker eventually took a drug test on August 23, and the results were negative.
In relation to EastPack’s claim that Baker avoided the first test, the ERA found the company had not complied with its own policy.
Witnesses gave evidence the drug van left the site around 10am and that it could not wait for Baker’s return.
According to the company’s policy, she had one hour to complete the test, which would have expired around 10.30am.
“EastPack cannot then complain that as a result of its own decision to let the van leave site prior, Ms Baker was not able to take the drug test.”
However, the decision also noted the witnesses were surprised by the one-hour clause in the policy and said it was not practice to ask the van to wait for absent staff.
In regards to the following day, the ERA found Baker had refused to take a drug test.
“She was given a second chance to take the drug test, agreed that she would do so, and then instead of abiding by her agreement, she actively refused to take the test. She had no good reason for refusal.”
The authority ruled it was not credible that she had found the use of the word “random” so confusing and misleading that she was entitled to refuse to undergo the test altogether.
It also found there was no weight in whether she was scheduled to work that day, or not.
Considering Baker’s dismissal overall, the ERA found the actions of Eastpack were fair and reasonable.
In dismissing her claim, it said although the allegation regarding her avoiding or delaying the first test was not upheld, she had breached her obligations in relation to the second.
“Eastpack was entitled to consider her surprising and vehement refusal to be a type of serious misconduct that warranted the ending of the employment relationship, as set out in her employment agreement.”
EastPack declined to comment on the case. NZME spoke with Sacked Kiwi, who represented Baker, in an effort to contact her, but this was unsuccessful.
Tara Shaskey joined NZME in 2022 as a News Director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff where she covered crime and justice, arts and entertainment, and Māori issues.
