| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 46 |
| Hearing date | 7 Mar 2012 |
| Determination date | 19 March 2012 |
| Member | D Appleton |
| Representation | K O'Sullivan ; J Copeland |
| Location | Dunedin |
| Parties | Kolo'ofai v Invercargill Passenger Transport Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent received email from passenger (“P”) alleging that applicant had stolen money from respondent – Applicant attended disciplinary meeting – Applicant denied taking money – Respondent did not inform applicant of P’s identity – Respondent director (“B”) informed that nothing out of ordinary in applicant’s takings – B concluded dismissal appropriate as rare to get complaint from member of public, no reason to disbelieve P’s account, on-bus camera did not assist, applicant had received final written warning and applicant did not prove P was telling lies – Applicant dismissed – Applicant had received final written warning for failing to drive route despite being rostered to do so which B referred to in notice of termination – Authority found although good practice to warn employee of risk of dismissal before commencing disciplinary process applicant would have known dismissal was possibility – Found although little notice given of disciplinary hearing fact that applicant did not ask for more time meant applicant not unduly prejudiced – Found fundamental tenet of fairness that accused should be able to ask questions of accuser – Found respondent’s failure to question P and allow applicant to do so rendered dismissal unjustified – Found final written warning not connected with dishonesty and so unreasonable for it to have weighed in decision to dismiss – Found, however, did not in itself render decision unreasonable because reasonably held finding of dishonesty would have justified dismissal – Found not unreasonable for respondent to take into account applicant’s previous employment history – Found P’s email not sufficient evidence to conclude applicant had stolen money – Dismissal unjustified – REMEDIES – No contributory conduct – Found applicant’s actions did contribute to grievance as did not sort fare into cash box but not blameworthy conduct – Applicant sought reinstatement – B claimed reinstatement inappropriate because applicant had pleaded guilty to eight counts of benefit fraud – Found in light of fact bus driver regularly handled cash unreasonable to order reinstatement due to applicant’s conviction – $6,949 reimbursement of lost wages appropriate – $7,500 compensation appropriate – GOOD FAITH – Applicant claimed respondent failed to comply with obligation to inform applicant that collective agreement existed together with other information set out in Employment Relations Act 2000 – Respondent admitted breach – Found no penalty sought by applicant and so inappropriate to impose one – Bus Driver |
| Result | Applications granted ; Reimbursement of lost wages ($6,949.28) ; Compensation for humiliation etc ($7,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s62;ERA s62(2);ERA s103A;ERA s125 |
| Number of Pages | 15 |
| PDF File Link: | 2012_NZERA_Christchurch_46.pdf [pdf 70 KB] |