A flight controller who claims his drink was spiked after losing his job has had his application for interim reinstatement denied.
New recruit Liam Scullin went to the Employment Relations Authority to fight for interim reinstatement after the offer of employment was terminated by Airways Corporation of New Zealand (Airways).
While the Employment Relations Authority (ERA) said the man had an "arguable case for unjustifiable dismissal" the authority found his case to be "not strong enough".
Scullin had trained for and had accepted an employment offer as an air traffic controller (ATC) when he tested positive for MDMA in a hair follicle test.
Airways, a state-owned enterprise, is the only entity certified by the Civil Aviation Authority (CAA) to provide air navigation services in New Zealand.
Scullin's job as an ATC was to give instructions to pilots to keep aircraft apart from each other and to ensure the safe navigation of air traffic. The CAA rules require all ATCs hold a class 3 medical certificate.
In August 2018 Scullin applied for the air traffic control training programme at
Airways Training Limited. He was offered a place and began training in November 2018 which continued until the end of 2019.
Scullin paid over $20,000 in fees for his air traffic control training.
In March 2020, he was sent to Gisborne control tower where his final performance assessment was completed. Later that month he was offered a job on many conditions including that he completed a pre-employment drug and alcohol test.
Scullin took a test in early April where the Drug Detection Agency (TDDA) sent a hair sample of his to Omega, a US-based testing company.
On April 15 TDDA notified Airways that Scullin's hair sample had tested positive for the presence of MDMA (Ecstasy).
On April 17 Airways telephoned Scullin and told him of the positive result.
At a Skype meeting that afternoon to discuss the results, Scullin was asked if he had any initial comments. He explained it could only be an error or mistake in the testing process.
At another meeting just days later, Scullin said he would never voluntarily consume drugs.
Scullin said he had attended the Rhythm & Vines festival at New Year and whilst there had become intoxicated. Which is when it said there was a possibility his drink had been spiked.
When asked whether he could recall experiencing not linked to alcohol, Scullin said he had no such recollection due to the amount of alcohol he had drunk.
He had voluntarily booked an additional drug test with TDDA, which returned negative in May.
While information from TDDA said the drug can be contained or concealed in a drink and that the drug stays in someone's system and shows on the hair follicle test for 12 weeks.
TDDA said the hair follicle test shows a "lifestyle" approach to drug use and they did not believe it was the result of one-off use.
Scullin was informed about his positive drug test and as a result, Airways terminated Scullin's employment.
In 2020, Scullin took his issue to the ERA which was ultimately denied but he challenged the determination in October this year.
Scullin argued he should be granted reinstatement because Airways is the only place in NZ where he can work in his trained role.
Airways argued he had demonstrated, as a result of the positive test at a very early stage in his engagement with Airways, that he had engaged in drug use, and that is not compatible with the safety-conscious environment Airways must operate in.
The ERA stated Scullin faced some significant hurdles" to reinstatement as he could not currently perform the duties of an ATC, as he does not hold a Class 3 Medical Certificate.
While the judge said Scullin had an argument, it would not be strong enough and interim reinstatement would not be ordered.