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Port Fails to Follow Own Procedure

Written by Glenn Finnigan, PARTNER on February 9th, 2015.    

Procedural Oversight Can Invalidate Dismissal

It is not difficult for employers to make procedural errors when taking disciplinary action against employees. It is a regular complaint, particularly from small employers, that the procedural requirements for even simple disciplinary matters are complex and technical. This can lead to findings of unjustified dismissal, not because an employee hasn’t committed serious misconduct, but because a full and fair procedure was not followed to reach that conclusion.

Less common are  situations  where an employer fails  to  follow  its own procedures  in dealing  with employees. Many employment agreements and internal policy documents contain procedures which an employee fails to follow at its peril.

In a recent decision from the Authority, Ports of Auckland Ltd was found to have failed to follow its own procedures regarding a drug test which compounded other shortcomings of the process  that  was followed in dismissing one of its staff. This resulted in the Authority unwinding the dismissal and reinstating the employee.

Port Fails to follow own procedure-740-708

Phillips v Ports of Auckland Ltd

Mr Phillips was a stevedore at Ports of Auckland. In January 2014, Ports of Auckland introduced a written Drug and Alcohol Policy to cover the procedure for post-incident testing. It appears from the case that the Port did not provide training or education to Mr Phillips about the policy.
On 18 October 2014 Mr Phillips slipped while climbing down a ladder and injured his shoulder. He reported to his supervisor and was taken to the hospital for treatment. The hospital cleared Mr Phillips for light duties and released him that evening.

The supervisor on duty decided that a post-incident drug test should be conducted and told Mr Phillips to remain on-site and wait for the mobile testing unit to arrive. He did not follow the procedure set out in the drug and alcohol policy. This required certain information to be provided to Mr Phillips about the testing. The Port’s evidence was that despite being told not to drive home and to remain for a drug and alcohol test, Mr Phillips got in his car and drove home. Mr Phillips’ explanation that he thought he had been given permission to leave the workplace was not accepted.
The Port held a series of disciplinary meetings regarding this incident. It claimed that the failure to take the drug test and leaving the site constituted breaches of the employment agreement and serious misconduct. From the case it appears that Mr Phillips’ supervisor did not have any concerns that Mr Phillips had engaged in unsafe work practices or was affected by drink or drugs or that had been a factor in the accident.
At the disciplinary meetings Mr Phillips’ representative raised a number of issues including:

  • The failure to educate Mr Phillips on the drug and alcohol policy (he was unaware of it);
  • The failure to follow the policy when requiring Mr Phillips to be tested;
  • That Mr Phillips was injured and was justified in going home in accordance with the sick leave provisions of the Holidays Act 2008. 
In its decision, the Authority set out a list of procedural failings made by the Port in deciding to dismiss Mr Phillips.  The chief criticisms were:
  • The failure to properly investigate whether Mr Phillips had been trained in  the  policy,  and whether it had been properly applied. It appears the Port’s decision maker assumed it had been. Asking leading questions of witnesses designed to obtain specific responses that were contrary to Mr Phillips’ version of events.
  • The failure to provide Mr Phillips with the opportunity to respond to the Port’s conclusion that serious misconduct had occurred. This precluded his ability to discuss mitigating factors or make submissions on the sanction that was appropriate for the conduct.
  • The failure to consider Mr Phillips’ explanations involving the proper application of the policy and whether this meant the instruction to Mr Phillips to remain on site for testing was not a reasonable and lawful instruction.

The Authority ordered that Mr Phillips be reinstated to his role and paid lost wages from the date of his dismissal. A small victory for the Port was that Mr Phillips was awarded no compensation for distress. This was because he contributed to the situation by leaving the site without raising the concerns about the application of the policy with the employer.
This case is another strong reminder of the importance of carrying out disciplinary processes in a procedurally fair manner. A key message is that education and training about policies and procedures is critical for all parties. Employers should ensure that all employees are aware of and have received training in policies which apply to them. Employers (and managers who are expected to implement policies) should ensure that they are implemented correctly. If internal policies are well drafted and adhered to they can allow flexibility and the smooth and efficient running of a business.
Most importantly, if employers do not intend to take legal advice on disciplinary matters, it is essential that the staff running the process are aware of the minimum requirements of the disciplinary process and follow up on explanations that have been given in the course of the process. What will be fair often changes depending on the nature or complexity of the situation. If there is any doubt, we suggest that you take specialist legal advice.

How We Can Help

Jackson Russell is experienced in dealing with all aspects of employment law. We regularly assist employers and employees through disciplinary  processes. We also assist employers with  drafting internal policies, and training and educating staff on how to implement them effectively.

If you would like further information about disciplinary matters, or require advice on anything related to employment relations, please  contact your  usual Jackson Russell  advisor or  our Employment Law specialists.


The information contained in this publication is of a general nature and is not intended as legal advice.  It is important that you seek legal advice that is specific to your circumstances.
All rights reserved © Jackson Russell 2015

Glenn Finnigan Publications2
Glenn Finnigan,

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