Sniffer dogs and claims of drug use can leave a company all at sea

THE DOMINION POST - MONDAY, 27 SEPTEMBER 2010

Two ship workers were recently denied interim reinstatement after being dismissed by the same employer in the course of a drug-use investigation.

Damien Burtton had allegedly taken drugs at work and lied to his employer. He was sacked. Karl Browne resigned during the investigation and claimed he had been given no other choice by the employer. He claimed constructive dismissal. Both men sought reinstatement on an interim basis prior to the case being fully heard and decided.

Mr Browne and Mr Burtton were employees of Talley's Group. They both worked on the Nelson fishing vessel MVF Enterprise. Mr Burtton started in 2004 as a deckhand, Mr Browne in 2009 as a factory hand.

On May 12, 2010, the crew of the MVF Enterprise was preparing to sail from Nelson the following day. The employer arranged for a search of the vessel and the crew's possessions on it. It brought in a drug detection dog.

The dog took an interest in the luggage of several crew members, including Mr Burtton's and Mr Browne's. Although there were comprehensive searches of their possessions as well as the rest of the vessel, no illegal drugs were found, either linked to Mr Burtton or Mr Brown, or more generally.

Each of the men was, however, interviewed by company representatives including a private investigator who was formerly a police detective.

At the initial meeting Mr Browne was asked whether he took drugs. He indicated that he had done so up until a year previously but was now "clean". He denied knowledge of anyone else on the vessel taking drugs.

Mr Burtton also denied knowledge of drugs on the vessel and personal involvement in drug use.

The company decided to suspend Mr Browne while conducting a further investigation. At a disciplinary meeting that he attended without legal representation due to rescheduling of the meeting by Talley's, he was told that other crew members had seen him take drugs. He was given no specific details of the allegations or who made them. Talley's then gave Mr Browne the opportunity to resign. He did so as it was clear to him that if he did not he would be dismissed.

Mr Burtton, during the investigation, was asked about his relationship with Mr Browne. Mr Burtton said he only had Mr Browne's contact details in his phone for the purposes of maintaining contact with shipmates while at sea. The company decided that was a lie. It found that Mr Burtton had a long-standing friendship with Mr Browne. Mr Burtton had denied phoning Mr Browne on the day of the search but admitted later that he had.

Mr Burtton was put on a lengthy suspension without pay. By the time his disciplinary meeting took place he was facing allegations that witnesses had seen him use the drug "P" while at sea and that he had supplied it to young female crew members. He was also alleged to have been dishonest about his relationship with Mr Browne. After considering Mr Burtton's responses, Talley's dismissed him.

The Employment Court found that the men had strong arguments that they were not dealt with by the employer fairly and reasonably. Little information about the allegations against them was provided. Talley's had relied on their body language and impressions of their credibility without putting those to them for comment. The employer did not ensure adequate legal representation when serious criminal offending was at issue. It suspended the employees for lengthy periods without pay and without communications about the progress of the investigation despite statutory obligations requiring this.

The court found that it was desirable that further information be disclosed about the identities of the people who had implicated Mr Browne and Mr Burtton. It said that if that disclosure occurred then returning the men to work on a relatively small vessel confined at sea would produce a real risk of conflict.

The potential risk to the employer of having to take the men back if the allegations were established or the employer's decision was found to be fair and reasonable, outweighed the risk of injustice to the employees.

The court said that such was the importance of crew compatibility and safety at sea on a working fishing vessel that it considered, by a close margin, that there should be no interim reinstatement, despite the severe economic consequences to the plaintiffs of the expected delay in proceedings.

The case highlights that although an employee may have a strong case for unjustified dismissal, the court will not necessarily hold that the interests of justice will be met by an order for interim reinstatement.

It also demonstrates that workers are wise to obtain legal representation at an early stage. Employers' obligations to disclose all relevant information must be met.