Ethan O'Brien was fired from his job as a stevedore following an invalid drug test.
Ethan O'Brien was fired from his job as a stevedore following an invalid drug test.
A sacked stevedore is back on his employer’s payroll after a dispute over a urine test for drugs ended up in court.
While Ethan O’Brien did not test positive for drugs when selected for a random test at the Port of Auckland, where he worked, strips on a testing cup that monitor a urine sample’s temperature and the concentrations of a substance called creatinine, to ensure the sample is not diluted, failed to activate.
O’Brien was sent home and suspended from work immediately after the test, the validity of which is being challenged by the Maritime Union, and then later fired.
His employer, C3 Ltd, believed the urine sample was not his own.
O’Brien’s counsel, Simon Mitchell, KC, has told the Employment Court that his client had not tested positive and there was no evidence that he has ever been under the influence of drugs or alcohol at work.
He said O’Brien’s dismissal was based on the evidence of the testing strips, without sufficient investigation.
C3 Ltd is resisting O’Brien’s full reinstatement, arguing that he tends to flout health and safety protocols.
After being sacked, O’Brien took C3 Ltd to the Employment Relations Authority (ERA), which gave a preliminary decision reinstating him.
C3 challenged that to the Employment Court, where Judge Merepaia King endorsed a decision to put O’Brien back on the payroll, but declined to fully reinstate him.
O’Brien’s work future will now be decided at a substantive hearing of the ERA in February.
He began working with C3 Ltd as a stevedore in Auckland in June 2022 after being employed by the company for about seven years at another port.
His role included operating heavy machinery such as cranes, top lifters and forklifts.
On July 2023, O’Brien was called off the ship where he was working and told he had been selected for random drug testing.
At the testing van, he provided a urine sample into a cup. This was supervised by a technician, but that person did not have a full view of the flow of urine being provided.
The test cup, manufactured by the American company Nexscreen, has a strip that reacts to the temperature of urine between a range of 33C and 38C. The cup has another strip for measuring levels of creatinine, produced by the kidneys.
The technician said the test cup was just over half-full and did not feel as warm as it should have when O’Brien handed it to him.
The thermal strip had not been activated, so the technician advised he would not validate the test.
The technician did not inform O’Brien that his urine also failed to meet the minimum level of creatinine required for a valid sample.
He worked as a stevedore at the Port of Auckland.
O’Brien said he asked the technician and then his manager whether he could undertake another test. The technician did not recall that request being made and the manager denied that any request was made.
He was sent home and suspended from work.
O’Brien later told a disciplinary meeting that he could not have adulterated the urine sample, as C3 had suggested, because the technician was monitoring him when he provided it.
Maritime Union representative Russell Mayn challenged the validity of the test indicators.
He questioned whether the test cup was faulty, and if the testing strips had failed. He pointed out that, if the sample was said to be false, the company should have requested a second sample and sent both samples away for testing.
But C3 Ltd said O’Brien had been unable to provide a reasonable explanation for why his urine sample was outside of the expected temperature range, or why the creatinine level was abnormal.
“It [the company] did not accept that the urine sample was his own,” according to the Employment Court decision.
O’Brien was dismissed on August 2.
In addition to the dispute over the testing, C3 said O’Brien had been issued with a health and safety breach notice for driving a motorcycle on the port without a helmet or licence and had made errors which resulted in damage to two client vehicles.
He had also attempted to enter the Port of Auckland site without his access identification card.
Judge King said these safety issues do not appear to have been treated seriously by C3 at the time, as it did not start any investigation or disciplinary action regarding them.
The judge ordered the company to keep O’Brien on its payroll until the outcome of his substantive hearing by the authority.
O’Brien declined to comment.
Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay.
