| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 19 |
| Hearing date | 25 Jan 2012 |
| Determination date | 22 February 2012 |
| Member | M Ryan |
| Representation | G Clarke ; M Gould |
| Location | Wellington |
| Parties | Gray v Tranzit Coachlines (Wellington) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant claimed unhappy about 10 hour break between completion of rostered shifts when doing rail work and commencement of next shift – Respondent undertook review of applicant’s timesheets which revealed two occasions when 10 hour break taken instead of required 12 hour break – Applicant received disciplinary letter which highlighted inconsistencies with timesheet and that applicant had left yard and taken coach home between allocated work without authorisation – Applicant invited to attend disciplinary meeting – Applicant claimed unable to view surveillance footage provided by respondent – Dates of alleged timesheet inconsistencies different to those in earlier correspondence – No dates given for unauthorised use of company vehicle – Applicant claimed when unable to take break added half hour onto timesheet and claimed was common practice amongst drivers – Applicant claimed rounded recorded time up or down on timesheet to nearest half hour – Applicant claimed always advised Operations Manager (“M”) when taking coach home and M never advised applicant not to do so – Applicant dismissed – Authority found respondent well resourced to undertake fair investigation into concerns about applicant – Applicant claimed not provided with information requested before disciplinary meeting – Applicant claimed timesheets in relation to allegation of unauthorised removal of company vehicle not supplied – Found dates of misconduct raised in investigation meeting did not match dates listed in disciplinary letters – Found respondent failed to put all reasons for dismissal to applicant during disciplinary process – Found applicant confused as to what respondent wanted applicant to explain and applicant not provided with information relevant to respondent’s concerns – Found significant that respondent failed to provide applicant with correct dates of alleged misconduct – Found applicant unable to properly respond to matters – Applicant claimed respondent did not comply with rest break requirements – Respondent claimed not common practice for drivers to add extra time to timesheets – Respondent claimed applicant provided with break and team leader confirmed applicant relieved for breaks – Found reasonable for respondent to conclude applicant engaged in serious misconduct – Applicant claimed had been taking home vehicle between scheduled jobs for four years and initially sought permission but ceased doing so because thought respondent aware – M claimed applicant granted permission to take vehicle home about twice a year – Found respondent unaware applicant took coaches home frequently – Found reasonable for respondent to conclude applicant took coaches home without authorisation and was matter of serious misconduct – Respondent claimed applicant should have returned to depot between scheduled work – Applicant claimed other drivers took breaks at home – Found issue not taken any further at disciplinary meeting – M claimed drivers did have downtime but expected to be available for alternative duties – Found no evidence provided as to how downtime managed by respondent – Found respondent could not have reasonably concluded applicant engaged in serious misconduct without discussing matter further – Respondent conceded did not discuss alternatives to dismissal – Respondent claimed sought no comment from applicant on penalty – Found respondent did not provide applicant with opportunity to discuss findings – Found respondent’s investigation procedure contained significant number of procedural defects which collectively impacted unfairly on applicant’s ability to respond to allegations – Dismissal unjustified – REMEDIES – 75 percent contributory conduct – Applicant sought reinstatement because unable to find another job at same pay level – Respondent claimed relationship would be strained if applicant reinstated – Found applicant significantly contributed to respondent’s loss of trust and confidence in applicant – Found reinstatement not reasonable or practicable – Reinstatement declined – Reimbursement of lost wages appropriate - $1,000 compensation appropriate – Driver |
| Result | Application granted ; Contributory conduct (75%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($4,000 reduced to $1,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c)(i);ERA s103A;ERA s103A(3);ERA s103A(3)(b);ERA s124;ERA s125(2);Employment Relations Amendment Act 2010 s15 |
| Cases Cited | Angus and McLean v Ports of Auckland Limited [2011] NZEMPC 160;NZ Food Processing IUOW v Unilever NZ Ltd [1990] 1 NZILR 35 |
| Number of Pages | 19 |
| PDF File Link: | 2012_NZERA_Wellington_19.pdf [pdf 91 KB] |