| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 111 |
| Hearing date | 16 Jan 2012 |
| Determination date | 28 March 2012 |
| Member | R Larmer |
| Representation | R Davis (in person) ; T Braithwaite, M Harvey |
| Location | Tauranga |
| Parties | Davis v Kleana Bins 92002) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged and dismissed by respondent – Applicant had accident while driving respondent’s vehicle – Vehicle handbrake failed while parked on hill causing significant damage and vehicle written off – Applicant told respondent Police would not be taking action against applicant as believed accident cause by mechanical failure – Constable (“M”) claimed had checked handbrake on and pulled on very hard – M claimed handbrake only effective when all wheels on firm surface but handbrake failed as one vehicle wheel on grass – M claimed decided applicant not negligent and not appropriate to pursue criminal charges - Respondent director (“C”) claimed accident caused by applicant’s negligence as partially parked on grass – M claimed Police would not expect applicant aware that handbrake ineffective on grass – C claimed applicant also negligent as had not turned wheels towards wall when parked – M claimed did not expect commercial vehicle drivers to turn wheels to kerb when parked on hill as had to get in and out of vehicles regularly – Authority found applicant not required to turn wheels towards wall when parked – Applicant suspended – Respondent claimed did not need to consult with applicant before suspension as applicant involved in serious crash and risk would happen again – Found suspension not urgent and respondent should have consulted applicant before decided suspension appropriate – Found applicant unjustifiably disadvantaged by unilateral suspension – Respondent sent applicant letter and claimed applicant’s belief had done nothing wrong unacceptable - Respondent claimed extreme likelihood applicant would cause another accident – Applicant dismissed – Respondent did not contact M about Police’s decision not to prosecute applicant – Found fair and reasonable employer would not have concluded that accident not caused by mechanical failure – Found respondent did not sufficiently investigate concerns before dismissed applicant – Found respondent did not specifically inform applicant of allegation extreme likelihood applicant would cause another accident – Found applicant not given reasonable opportunity to respond to respondent’s concerns – Found on balance of probabilities dismissal predetermined – Found respondent breached good faith duty as did not give applicant all information relied on when decided to dismiss – Found applicant not negligent and unaware handbrake only effective when all wheels on firm surface – Respondent aware of potential handbrake hazard – Found respondent failed to inform applicant of potential hazard or give applicant training on how to park truck safely – Found fair and reasonable employer would not have concluded had lost trust and confidence in applicant – Dismissal unjustified – REMEDIES – No contributory conduct - $500 compensation appropriate for unjustified disadvantage - $6,000 compensation appropriate for unjustified dismissal – Six weeks reimbursement of lost wages appropriate - Truck Driver |
| Result | Applications granted ; Reimbursement of lost wages (six weeks) ; Compensation for humiliation etc ($500)(unjustified disadvantage) ($6,000)(unjustified dismissal) ; No order for costs ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s103A(4);ERA s103A(5);ERA s128(2) |
| Cases Cited | Angus v Ports of Auckland Ltd [2011] NZEMPC 160;BP Oil New Zealand Ltd v Northern Distribution Union [1992] 3 ERNZ 483;Singh v Sherildee Holdings Ltd t/a New World Opitiki unreported, Couch J, 22 September 2005, AC 53/05 |
| Number of Pages | 23 |
| PDF File Link: | 2012_NZERA_Auckland_111.pdf [pdf 100 KB] |