| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 102 |
| Determination date | 25 May 2012 |
| Member | D Appleton |
| Representation | G Burness ; R Brown |
| Location | Timaru |
| Parties | Goodman v Rooney Earthmoving Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority found delay between accident and disciplinary meeting reasonable – Found respondent should have adjourned disciplinary meeting, provided applicant with full copy of drug test result and sought independent testing but errors did not prejudice applicant – Found applicant admitted used cannabis regularly – Dismissal justified – COUNTERCLAIM – BREACH OF CONTRACT – Respondent claimed applicant breached implied term in employment agreement and caused damage to respondent’s truck – Found damage caused by applicant’s breach of duty to take reasonable care in discharge of duties – Applicant to pay respondent $9,310 damages – Truck driver |
| Abstract | Applicant employed by respondent as truck driver. Applicant involved in two minor accidents before more substantial accident two weeks later. Applicant required to take drug and alcohol test and stood down for remainder of day, after which applicant continued driving. Applicant tested positive for cannabis. Investigation commenced. Respondent claimed applicant admitted ate cannabis regularly. Applicant dismissed. Applicant claimed unreasonable delay between accident and dismissal. Applicant claimed letter summoning applicant to disciplinary meeting referred to date of earlier accidents. Applicant claimed prevented from having support person at disciplinary meeting. Respondent claimed applicant did not ask for support person. Applicant claimed respondent failed to provide applicant with full test result and to verify result independently. Applicant claimed dismissal predetermined. Applicant denied admitted regular cannabis use. Respondent claimed important to enforce health and safety standards given applicant’s operation of large vehicles. Respondent counterclaimed applicant breached employment agreement and caused damage to truck. Applicant claimed condition of truck at least partly responsible for accident.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Delay in holding disciplinary meeting due to respondent waiting for test result and new staff member responsible for disciplinary matters to commence employment. Respondent should have adjourned meeting but clear that applicant understood quickly which incident referred to in letter and unlikely to be prejudiced by error. Applicant wanted support person to take notes of meeting not speak on applicant’s behalf so even if respondent refused applicant’s request applicant not unduly prejudiced. Respondent should have provided applicant with full copy of test result but not serious error as applicant saw important part of result. Respondent’s failure to seek independent testing would be serious error if applicant dismissed because of positive result, but applicant dismissed because of admission that applicant was regular cannabis user so applicant not prejudiced by respondent’s failure. Dismissal not predetermined. Clear that applicant suggested in meeting applicant was regular user of cannabis. While open to respondent to provide warning, fair and reasonable employer could have dismissed applicant. Dismissal justified.;COUNTERCLAIM – BREACH OF CONTRACT: Applicant under implied duty to take reasonable care in discharge of duties. Damage to vehicle caused by applicant negligently undertaking inherently hazardous overtaking manoeuvre. Applicant to pay respondent $9,310 damages. |
| Result | Application dismissed (unjustified dismissal); Application granted (Counterclaim)(Breach of Contract); Damages ($9,310.48); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s62;ERA s103A;ERA s142;Legal Services Act 2011 s45(2) |
| Cases Cited | Katz v Mana Coach Services Ltd [2011] NZCA 610;Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555;Wadley v Salon D’Orsay Ltd [1998] 1 ERNZ |
| Number of Pages | 15 |
| PDF File Link: | 2012_NZERA_Christchurch_102.pdf [pdf 166 KB] |