| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 29 |
| Hearing date | 19 Oct 2012 |
| Determination date | 02 April 2012 |
| Member | R Arthur |
| Representation | K O'Sullivan ; S Davies |
| Location | Wellington |
| Parties | Cutter v Wellington City Transport Ltd t/a Go Wellington |
| Summary | UNJUSTIFIED DISMISSAL – Poor Performance – Applicant claimed unjustifiably dismissed by respondent – Applicant driving bus when collided into skip bin – Applicant suspended and investigation commenced – Respondent operations manager (“B”) concluded accident due to applicant not applying brakes in time – Applicant previously issued with final warning for accident caused by driver error – Applicant dismissed - Applicant claimed car had pulled in front of bus and attempted to brake – Applicant claimed respondent’s investigation flawed and denied access to respondent accident investigator – Authority found applicant notified of allegations had not braked quickly enough and given opportunity to comment – Applicant claimed skip bin was obstructing road more than usual when had accident – Found although respondent could have further investigated position of skip bin and witness accounts investigation not inadequate – Applicant claimed mechanical issues caused accident – Found evidence did not establish brake not operating correctly and most likely brake working before accident – Applicant changed story about whether could push brake pedal all way to floor before accident – Respondent claimed if applicant had operated brakes correctly, brakes would have worked – Found respondent’s conclusion open to fair and reasonable employer – Applicant claimed respondent should not have taken previous warnings into account as accident seven months later – Previous warning stated applicant could be dismissed if any further poor performance issues – Applicant claimed dismissal breached parties’ collective employment agreement (“CEA”) - Applicant had number of accidents during employment – Respondent organised driver training for applicant and issued final warning after applicant had another accident after completed training – Found respondent complied with CEA and expired warning could be taken into account as part of dismissal decision – Found respondent took sufficient steps to improve applicant’s performance and applicant could be dismissed for poor performance – Dismissal justified |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s174 |
| Cases Cited | Butcher v OCS Ltd [2008] ERNZ 367;Honda New Zealand Ltd v NZ Boilermakers Union (1990) ERNZ Sel Cas 855;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] 1 ERNZ 808;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Wellington_29.pdf [pdf 72 KB] |