Sacked stevedore to remain on payroll amid dispute over invalid urine test

The New Zealand Employment Court has ordered C3 Limited to keep in its payroll an Auckland port worker after the employer challenged his interim reinstatement in court.

Ethan O'Brien won interim reinstatement at the Employment Relations Authority (ERA) in October 2023 after he was dismissed by his employer over a dispute on his urine test.

C3 alleged that the urine sample O'Brien provided during a random drug and alcohol test was not his own, citing the below-expected temperature reading of the sample as well as the abnormal creatinine reading below the minimum level of 20.

O'Brien, however, disputed the allegations claiming the testing technician was standing beside him when he provided the sample, adding that another sample should have been obtained if the first test was invalidated.

C3 suspended O'Brien on full pay as it investigated the matter before terminating him in August 2023.

The ERA ruled in favour of O'Brien, ordering C3 to reinstate the stevedore in the role he was dismissed from.

His reinstatement, however, comes with the condition that he should pass a valid drug and alcohol test in the 24 hours before he returns to work.

The employer also has the authority to continue managing, monitoring, and testing him as permitted under its Drugs and Alcohol at Work Policy.

Employment Court challenge

C3 later raised the matter to the Employment Court - challenging the interim reinstatement decision of the ERA.

According to the employer, the health and safety risks from O'Brien's reinstatement are "unacceptable in the high-risk [Port of Auckland] environment."

"His dishonesty during the disciplinary process has irreparably damaged the trust and confidence required in their employment relationship, making reinstatement impossible," C3 submitted in court.

The employer also pointed out that O'Brien flouted health and safety protocols while he was still at work.

"These factors escalate the health and safety risks associated with Mr. O'Brien's reinstatement to the high trust, high risk POAL environment to an unacceptable level."

C3 also argued that imposing weekly or more frequent drug testing would be impractical for the organisation.

Successful challenge to reinstatement

The Employment Court ruled that full interim reinstatement in the workplace should not be ordered, a win for C3 in the dispute.

"The critical importance of health and safety in the POAL environment and Mr. O'Brien's safety sensitive role, together with the lack of expert evidence before the Court on the conditions on which Mr. O'Brien could safely and practicably return to the workplace, is a strong consideration that points away from interim reinstatement," the Employment Court said in its decision.

"Standing back from the matter, and considering the overall justice of the case, I am satisfied that full interim reinstatement to the workplace should not be ordered. C3 Ltd's challenge is successful."

However, the court acknowledged that O'Brien still has a "strongly arguable case" for reinstatement.

"It is appropriate that I order Mr. O'Brien to continue to remain on the payroll until the substantive determination of his claim by the Authority," the court ruled.