An airport baggage handler has been awarded nearly $11,000 after being found to have been unjustifiably dismissed when he tested positive for cannabis.
Jonathan Eaton acknowledged to the Employment Relations Authority (ERA) that he had overindulged in alcohol at a weekend party but was "shocked" when he returned a "non-negative" and then positive drug test. A subsequent test, which Eaton paid for himself, came back negative.
Eaton was working as a baggage handler for Airport Services (Dunedin) Limited (ASD), where he had been employed for some 11 years.
The company told the ERA it had a contract with Air New Zealand that required "zero tolerance" and a strict approach to any employees who tested positive for drugs or alcohol in the workplace.
Eaton was selected for a random drug test on Monday, June 27, 2016 after a weekend off.
"He had been to a party on the Friday night and had over-indulged in alcohol. However,
he had no concerns that he would test positive for alcohol or any drug and willingly
complied with the testing," the ERA decision says.
The test results came back as non-negative for cannabinoids. A further test came back showing that Eaton had low levels of THC - the primary psychoactive substance in cannabis - in his system. He was stood down pending a disciplinary meeting.
Eaton decided to get a further urine drug-screening test done at his own cost a few days later, which came back negative.
At the disciplinary meeting, Eaton told ASD's director Brian Doherty that he was not a habitual, regular or even occasional user of cannabis.
"He said that he ... was as shocked as Mr Doherty was when he returned a non-negative and then a positive test," the decision says.
Eaton told the ERA that, short of a dismissal, he had proposed accepting a demotion from his part-time loading foreman role and pay for regular drug tests for himself for six months. Doherty said he did not recall this offer.
Doherty discussed the matter with a contact at Air New Zealand and was told that if he had been employed by the airline he would likely be dismissed, but that Doherty must make his own decision.
He terminated Eaton's employment later that day, telling the ERA that he was compelled to do so as a result of ASD's contract with Air New Zealand.
"The problem with attempting to rely on [Air New Zealand's supplier code of conduct] is that ASD had not been given it by Air New Zealand when Mr Doherty decided to dismiss Mr Eaton," the ERA decision says.
"In addition, Mr Eaton had not been made aware of Air New Zealand's alcohol
and other drugs policy. ASD cannot retrospectively rely on any agreement with Air
New Zealand to enhance its argument that the dismissal was justifiable."
The ERA also found that a ASD's own drug and alcohol policy allowed some discretion to offer rehabilitation or to place an employee on leave in such situations rather than outright dismissal.
While accepting that such measures were discretionary, ERA member Christine Hickey concluded that Doherty had decided before that disciplinary meeting that dismissal was the most appropriate outcome.
"I do not mean to suggest that Mr Doherty made the decision lightly. He sought advice and considered his options. However, he wrongly, in my view, considered that dismissal was the only option," she said.
Eaton submitted that his role as a union delegate may also have led him to being treated more strictly than he otherwise would have been, which Doherty denied.
Doherty's notes recorded that Eaton "should have known better" as a union representative, something Hickey said should not have been taken into account.
"I consider that Mr Eaton was dismissed at least partly because of his involvement in union activities," the ERA member said.
Hickey determined that ASD did not act as a fair and reasonable employer in all circumstances, concluding that Eaton was unjustifiably dismissed.
He was awarded $4944 in lost wages and $6000 compensation, as well as $2322 for his legal costs.
Both parties have been approached for comment.