Sacked worker gets job back

The Employment Relations Authority (ERA) has ordered Ports of Auckland Ltd (POAL) to reinstate an employee and compensate him for lost wages. ERA member Rachel Larmer issued her recent determination in the case of Stephen Tautuhi Phillips, an access ancillary stevedore. He was summarily dismissed for serious misconduct, but argued he was unjustifiably sacked. He sought reinstatement, lost remuneration and compensation for distress, the last of which was declined. Phillips injured his shoulder at work when he slipped while coming down a ladder. He reported this to his supervisor, who arranged for him to go to hospital. They completed an incident form and, after being treated, Phillips was cleared for light duties. Along with the port’s stevedoring manager, the supervisor decided Phillips should undergo drug and alcohol testing because had been injured in an accident. He was informed of this when he returned to work. The supervisor said he instructed Phillips to have the tests and stay at work until they had been completed. Larmer identified a conflict in evidence regarding a conversation when Phillips returned to his supervisor’s office. Phillips claimed he told his supervisor his son would collect him and he wanted to go home because his shoulder was sore. He said the supervisor told him, “okay, the van is on its way”, which Phillips took to mean he had permission to leave work for the day. However, this referred to a drug detection agency’s van. Phillips’ son was unable to pick him up as planned, so he drove himself home. His supervisor disputed that Phillips told him he wished to leave work and he replied it was “okay” for him to. The supervisor said Phillips told him his son was picking up his car and needed to drop off its keys. The supervisor claimed he told Phillips to “be back soon”. When the drug-testing van arrived, the supervisor was unable to reach Phillips by phone. It left about 40 minutes later without him having been tested. Phillips said he learned there was a problem with his employment situation when he received a disciplinary letter, which stated POAL was concerned he left work despite allegedly told not to do so. It said he was instructed to undergo the test and wasn’t to drive his car, but he failed to take it and drove himself home. After receiving the letter, Phillips arranged for his own drug test, which he passed. The port company then advised him it had reached a finding of serious misconduct and dismissed Phillips from his job. Larmer found information that should be given to employees before they underwent drug and alcohol testing had not been passed on in Phillips’ case. She ordered POAL to reinstate Phillips to its payroll from the date he was dismissed and that the two parties were to work out when he should return to work.