When the work conversation turns pear shaped

When the work conversation turns pear shaped

Concrete Structures NZ Limited v Rottier 

Mr Rottier signed a new contract with his employer and started work around 10:30am on 6 May 2019 – a few hours later his employment was over. 

In summary, while working Mr Rottier’s Manager (Mr Henderson) approached Mr Rottier and accused him of letting subcontractors on site without signing in – he denied this, and was accused of lying. Understandably the conversation became heated and both men were agitated – Mr Henderson accused Mr Rottier of being high on drugs and asked if he would take a drug test – Mr Rottier refused. The following conversation (in effect) ensued: 

  • Mr Henderson – “if you can’t pass a drug test you can’t be at work under our health and safety policy” 
  • Mr Rottier – “I don’t need this f—— job anyway, you were the ones that wanted me to come back 
  • Mr Henderson – “if you feel that way you can f— off if you want 
  • Mr Rottier – “well I’ll f— off then. 

Mr Rottier packed up and left – he never returned to work. 

When the dust had settled both parties were understandably unhappy about what had transpired and each had a different view of the facts: 

  • Mr Rottier claimed he had been disadvantaged by the request to undergo a drug test and then had been unjustifiably dismissed. 
  • The employer claimed it had suspended Mr Rottier pending a drug test, and if passed, he could return to work. 

The matter was heard by the Employment Court. 

Was Mr Rottier disadvantaged? 

In answering this question the Court looked to the employer’s drug testing policies. It determined that a fair and reasonable employer will always comply with its own promulgated policies and procedures – in this case, the employer’s policy on drug testing could be summarised as ‘just cause’ testing, where employees could be tested if there was an observation causing concern that the person would be a potential or actual safety hazard – behaviour consistent with an immediate inability to perform work. 

The Court found there was no just cause to drug test Mr Rottier – there was no evidence he was creating a safety hazard or that he was unable to perform his work. 

Secondly, there was confusion over his status – whether he was suspended or dismissed. It was clear Mr Rottier had taken the view he had been dismissed and he informed the company of the same, raising a personal grievance for unjustified dismissal. The company took the view he was suspended but did not clearly put this to him, or clarify the situation when Mr Rottier made it clear he thought he had been dismissed. There was no consultation before suspending Mr Rottier. 

The Court found: 

  1. Mr Rottier had been disadvantaged by being requested to undergo a drug test when the need and justification for doing so had not been investigated adequately – there was no justification for drug testing Mr Rottier under the company’s own policy. 
  1. A fair and reasonable employer could be expected to consult with an employee about a proposed suspension – at the very least, making it clear to the employee they are suspended and could return when a satisfactory drug test result was received. 
  1. Mr Rottier had been disadvantaged by the confusion over his employment status – whether he was suspended or dismissed. The Court found a fair and reasonable employer could be expected to clarify the employment circumstances when there is confusion apparent. 

Was Mr Rottier unjustifiably dismissed? 

The Court agreed with Mr Rottier and found he had been unjustifiably dismissed – it said he had not abandoned his employment as he had made it clear he thought he was dismissed, and the company was at fault for failing to clarify the situation. 

The Court looked at the definition of dismissal which includes, among other things, “the termination of employment at the initiative of the employer”. The Court found the various failures on the part of the company led it to proceeding on the basis the employment relationship was at an end, without justification – Mr Rottier has been unjustifiably dismissed. 

Mr Rottier was awarded $12,000 compensation which the Court described as being “at the lower end of a fair award” – Mr Rottier was also awarded lost earnings and legal costs. 

The work conversation turning pear shaped, like it did for Mr Rottier, are not uncommon – the case provides guidance on how the law expects both employers and employees to act when these situations arise. 


If you have any questions or queries in relation to your work situation , please get in touch with the Watermark team directly. We are happy to advise you.

Jonathan Charlton