| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 204 |
| Hearing date | 7 Dec 2011 |
| Determination date | 16 December 2011 |
| Member | D Appleton |
| Representation | J Goldstein ; K Church |
| Location | Christchurch |
| Parties | Wallace v Broadway General Carriers Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant crashed truck into another truck which caused hit truck to be shunted into third truck – Police established fault of accident had been tourists parked on wrong side of road – Applicant advised respondent director (“C”) of accident – C claimed told applicant was unlikely applicant would have job if at fault for accident – Applicant took drug test as required by respondent depot manger (“D”) and passed – C told applicant to meet to discuss accident and implications for applicant’s employment – Applicant told D that advised by doctor not yet fit to work – Respondent’s main client informed respondent that satisfied accident occurred as direct result of applicant not observing following distances required and applicant no longer approved driver – C told applicant’s wife that applicant no longer had job – Applicant recorded phone conversations C had with applicant and applicant’s wife without C’s knowledge – Authority found could rely on recordings – Found applicant dismissed during conversation C had with applicant’s wife – Found respondent should have discussed matter with applicant before communicating dismissal to applicant’s wife – C claimed had another job available for applicant but had been waiting for applicant to confirm was fit to work – Found C did not advise applicant prior to dismissal or after dismissal of other job – Found applicant could not be blamed for not having had further contact directly with C after being dismissed without prior meeting or warning – Dismissal unjustified – REMEDIES – No contributory conduct – Found evidence supported that applicant not to blame for accident – $7,595 reimbursement of lost wages appropriate – $7,500 compensation appropriate – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought unpaid wages and holiday pay from respondent – C claimed all wages and holiday pay had been paid to applicant – Respondent failed to produce wages and time record – Found applicant’s claim accepted in absence of wages and time record – Found applicant entitled to $593 arrears of wages – Found applicant entitled to $5,192 arrears of holiday pay – PENALTY – Applicant sought penalty for alleged failure to be provided with employment agreement by respondent – C accepted no employment agreement had been given to applicant – Found applicant failed to raise application for penalty within time – Found ignorance of provisions of Employment Relations Act 2000 not sufficient to satisfy requirements – Found respondent failed to comply with requirement to keep wages and time record at all times – $3,000 penalty appropriate – Truck Driver |
| Result | Applications granted ; Reimbursement of lost wages ($7,595) ; Compensation for humiliation etc ($7,500) ; Arrears of wages ($593.41) ; Arrears of holiday pay ($5,192.35) ; Penalty ($3,000)($1,500 payable to Crown)($1,500 payable to applicant) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s60(2);ERA s63A;ERA s63A(1)(e);ERA s63A(2);ERA s63A(3);ERA s103A;ERA s130;ERA s130(2);ERA s130(4);ERA s131;ERA s132;ERA s132(2);ERA s135(5);Holidays Act 2003 s83 |
| Cases Cited | Charles v Waitakere City Council unreported, R Arthur, 19 November 2007, AA362/07;G & H Trade Training Ltd v Crewther [2002] ERNZ 513 |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Christchurch_204.pdf [pdf 56 KB] |