| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 89 |
| Hearing date | 29 Nov 2010 |
| Determination date | 14 May 2012 |
| Member | M B Loftus |
| Representation | G Amey ; M Hebberd |
| Location | Nelson |
| Parties | Duffy V Hebberds Bus Services 2009 Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority noted delay in issuing determination due to Christchurch earthquake – Applicant drove buses during school year – At end of school year respondent required employees sign new employment agreement (“EA”) for next school year – New EA for casual employment and employees required to undertake training – Applicant refused to sign new EA or undertake training – Applicant attended work at beginning of new school year – Applicant claimed raised concerns with respondent about another employee’s use of unregistered bus – Applicant claimed told to mind own business – Two weeks later applicant noted road user charges (“RUC”) distance almost expired – Applicant asked manager (“J”) for day off at end of week because applicant concerned personally liable if stopped with expired RUC licence – RUC licence expired during morning run before end of week – Applicant completed run and informed respondent – Applicant claimed told respondent would not drive vehicle until new RUC licence issued – Applicant claimed respondent said RUC licence was not applicant’s problem – Applicant arrived at work following week and noted bus did not have current RUC licence – Applicant sent text message to J that would not drive bus – Respondent claimed applicant’s action jeopardised safety of school children waiting for bus – J told applicant not to return to work – Applicant dismissed – Respondent claimed as casual employee able to terminate applicant’s employment at will – Authority found agreement during first school year not fixed term as no statement would come to end at conclusion of school year – Found applicant part time permanent employee – Found applicant refused to become casual employee and continued as permanent employee – Found respondent did not raise concerns with applicant about applicant not signing EA and refusing training – Found respondent knew applicant had concerns about whether bus could be driven on road – Found respondent could not rely on applicant’s failure to attend training as respondent failed to pay employees who did attend – Found even if respondent could rely on applicant’s failure to attend training, respondent failed to seek applicant’s comment – Dismissal unjustified – REMEDIES – Found applicant’s refusal to drive stupid act that abandoned number of children at side of rural roads – Found applicant’s actions could amount to 100 per cent contributory conduct but applicant did not contribute to unfair nature of applicant’s dismissal – 50 per cent contributory conduct - $1,440 reimbursement of lost wages - $2,000 compensation appropriate – Bus driver |
| Result | Application granted; Contributory conduct (50%); Reimbursement of lost wages ($1,440); Compensation for humiliation etc ($2,000); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s65;ERA s66;ERA s66(2)(a);ERA s103A;ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s124;ERA s128(2);Interpretation Act 1999 s4;Interpretation Act 1999 s7;Road User Charges Act 1977 s23(3A) |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Christchurch_89.pdf [pdf 156 KB] |