| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 45 |
| Hearing date | 28 Feb 2012 |
| Determination date | 18 April 2012 |
| Member | M Ryan |
| Representation | G Larkins ; M Gould |
| Location | Wellington |
| Parties | Mallia v New Zealand Van Lines Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant used respondent vehicle for personal use without authorisation – Respondent issued first written warning for applicant’s unauthorised use of vehicle – Applicant claimed attempted unsuccessfully to contact manager for authorisation – Applicant claimed considered challenging warning as had used respondent vehicle to visit union office to discuss work issues - Applicant claimed respondent confirmed if challenged warning would be unsuccessful – Final written warning issued five months later for incident while applicant using respondent vehicle – Applicant used handbrake while passenger and vehicle moving – Respondent received complaint from respondent employee and driver of another vehicle (“Y”) – Investigation commenced – Applicant claimed used hand brake as believed driver of vehicle did not see Y – Respondent concluded applicant’s actions dangerous and could have caused accident – Applicant again used respondent vehicle for personal use without authorisation - Applicant claimed used respondent vehicle to return home to help applicant’s partner (“X”) access house as X very distressed and locked out – Applicant claimed next job not until two hours later so decided to run personal errand using respondent vehicle – Applicant claimed other employees had used vehicle for personal use and had only been given “stern talking to” – Respondent told applicant would investigate allegations before made decision – Applicant dismissed - Respondent relied on final written warning when made decision – Authority found respondent decision to issue first written warning justifiable – Applicant claimed final written warning unjustified as not given opportunity to respond - Found applicant on notice that could receive final written warning if further incidents – Found respondent should have discussed matter with applicant before decided final written warning appropriate – Found applicant not given opportunity to comment before respondent decided to dismiss applicant – Found no evidence disparity of treatment between respondent employees – Dismissal unjustified – REMEDIES – 75 per cent contributory conduct – Found reinstatement not reasonable or practicable – Found reimbursement of lost wages appropriate - $1,250 compensation appropriate – Furniture Removalist |
| Result | Application granted ; Contributory conduct (75%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($1,250) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(b);ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s103A(4);ERA s103A(5);ERA s124;ERA s125(2);ERA s128(2);Employment Relations Amendment Act 2010 s15 |
| Cases Cited | Air New Zealand v Hudson [2006] ERNZ 415;Angus v Ports of Auckland Ltd [2011] NZEMPC 160;Irvines Freightlines Ltd v Cross [1993] 1 ERNZ 424;Northern Distribution Union v Armourguard Security Ltd [1989] 3 NZILR 262 |
| Number of Pages | 20 |
| PDF File Link: | 2012_NZERA_Wellington_45.pdf [pdf 96 KB] |