Mark Petherick v Elm Surfacing Ltd — 2022

Mark Petherick was employed by Elm Surfacing Ltd as a Sweeper Driver and was dismissed on 20 September 2020 after a drug test taken on 10 September 2020 reported cocaine and benzoylecgonine. The respondent said the dismissal was for gross misconduct. The claimant denied ever using cocaine and said the testing and disciplinary process was flawed.

The tribunal applied section 98 ERA 1996 and the range of reasonable responses test. It accepted that the respondent genuinely believed the claimant was guilty of misconduct, but held that it did not have reasonable grounds for that belief and that the belief was not based on a reasonable investigation. The tribunal found that sterile gloves were not used when the samples were taken, that the claimant's medication was not passed to Hampton Knight, and that the respondent had not provided completed consent or chain-of-custody forms.

The tribunal also found that the claimant denied cocaine use at the disciplinary meeting on 16 September 2020 and said he did not know how the test could have been positive unless it was due to the medication he was taking. It accepted his evidence that he asked for a hearing to put his own evidence forward but was told the matter was concluded. It also found that he was not offered the chance to have the second sample analysed and was denied an appeal. Judgment on remedy was deferred to a later hearing.