A construction worker who failed a random drug test while on the job because he had eaten "one or two pot cakes" at a party was unjustifiably dismissed.
Jesse Kenmare failed the drug test carried out by his employer Fulton Hogan in February and was stood down for three weeks and three days without pay before being fired.
Mr Kenmare told management during a disciplinary meeting that the drug test which showed he had consumed more 275 nanograms above the cut off level for testing of tetrahydrocannabinol in his urine was due to him unknowingly consuming "one or two cannabis laced cupcakes at a party" two days before earlier, a finding from the Employment Relations Authority said.
Fulton Hogan stood Mr Kenmare down immediately without pay for a month before he was dismissed from his job in March because he worked in a safety sensitive role.
Fulton Hogan did not believe Mr Kenmare was telling the truth about consuming a couple of pot cakes after discussions with drug experts because they said the level of cannabis in his blood would not have been that high and as a result the company did not offer him to take part in a company sponsored alcohol and drug rehabilitation programme.
Mr Kenmare also said his friend had also failed a drug test for the same reason but his employer said no test had been carried out in the past few months and Mr Kenmare was unable to produce text messages as evidence.
Despite the Employment Relations Authority finding it was unlikely Mr Kenmare was telling the truth that he had failed the test because of a couple of pot cakes, it still found he had been unfairly dismissed because there were procedural flaws with the dismissal.
Fulton Hogan failed to provide information to him about the professionals who were consulted about the credibility of his explanation and had not put it to him that they considered it to be untruthful. The company had also not told him why he had not offered him rehabilitation.
Fulton Hogan was ordered to reimburse Mr Kenmare $3472.20 of his wages along with 5 per cent interest for unfairly suspending him without pay and $4000 compensation for causing financial hardship and stress. A further $1000 in compensation was awarded for hurt and humiliation for not having options around his dismissal discussed.
The authority, however, did not find Mr Kenmare was unjustifiably disadvantaged when his name was selected for random alcohol and drug testing and dismissed his claim for reinstatement.
By Nikki Preston of the New Zealand Herald
