| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 191 |
| Hearing date | 30 Apr 2012 - 1 May 2012 (2 days) |
| Determination date | 05 June 2012 |
| Member | R Arthur |
| Representation | G Froggatt ; J Douglas |
| Location | Auckland |
| Parties | McKellow v Transportation Auckland Corporation Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant claimed unjustifiably disadvantaged by respondent's decision to suspend applicant and unjustifiably dismissed - Authority found respondent's decision to suspend applicant reasonable - No unjustified disadvantage - Found respondent did not assess complainant's credibility fairly - Found respondent failed to inform applicant respondent had tried unsuccessfully to contact complainant - Found respondent failed to consider applicant's suggestion respondent corroborate applicant's version of events - Dismissal unjustified - REMEDIES - Application for reinstatement to be determined under amended s125 Employment Relations Act 2000 - Reinstatement ordered subject to conditions - One third contributory conduct - Reimbursement of lost wages, parties to determine quantum - $4,000 compensation appropriate - Bus driver |
| Abstract | Applicant employed by respondent as bus driver. Applicant claimed unjustifiably disadvantaged by respondent's decision to suspend applicant and unjustifiably dismissed. Applicant on second written warning following previous complaints. Respondent received complaint from passenger (P") about applicant's conduct. Applicant failed to comply with supervisor's instruction to report incident on same day. Applicant suspended and investigation commenced. Respondent refused to allow applicant to interview P. Respondent alleged applicant failed to resolve conflict with P and exacerbated situation. Respondent considered prior complaints about applicant. Parties' employment agreement stated final written warning to precede dismissal but respondent claimed applicant's conduct serious misconduct. Applicant dismissed.;AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Respondent's decision to suspend applicant reasonable as P's complaint included potential threat to applicant's safety. No unjustified disadvantage. As respondent decided applicant's conduct sufficiently serious to dismiss applicant instead of giving applicant final written warning, respondent obliged to establish facts to more convincing level. Respondent accepted P's account more reliable based on past complaints against applicant and did not assess fairly P's credibility as complainant. Respondent failed to tell applicant respondent tried unsuccessfully to contact P. Respondent failed to consider suggestion respondent attempt to contact other passengers to corroborate applicant's version of events. Respondent failed to weigh positive information about applicant fairly. Fair and reasonable employer could not decide applicant's action serious misconduct based on inquiry conducted. Dismissal unjustified. REMEDIES: One third contributory conduct. Applicant sought reinstatement. Respondent claimed applicant had poor attitude and poor relationship with superiors. Application for reinstatement to be determined under amended s125 Employment Relations Act 2000. Applicant aware on final warning and would not want to jeopardise job in tough economic climate. Applicant's supervisor capable of re-establishing working relationship with applicant. Reinstatement practicable and reasonable subject to conditions. Respondent to pay applicant reimbursement of lost wages, parties to determine quantum. $4,000 compensation appropriate." |
| Result | Application granted (unjustified dismissal); Reinstatement ordered; Contributory conduct (one third); Reimbursement of lost wages (parties to determine quantum); Compensation for humiliation etc $4,000; Application dismissed (unjustified disadvantage); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Employment Contracts Act 1991;ERA s4(1A)(b);ERA s4(1A)(c);ERA s103A(3)(a);ERA s103A(5);ERA s124;ERA s174 |
| Cases Cited | Airline Stewards and Hostesses of New Zealand IUOW v Air New Zealand Ltd (1990) ERNZ Sel Cas 985; [1990] 3 NZLR 549;Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Ashton v Shoreline Hotel [1994] 1 ERNZ 421;Honda NZ Ltd v NZ (with exceptions) Shipwrights etc Union (1990) ERNZ Sel Cas 855; [1991] 1 NZLR 392;Northern Hotel etc IUOW v Rotorua Returned Services Assn (Inc) (1989) ERNZ Sel Cas 535;New Zealand (with exceptions) Shipwrights etc Union v Honda NZ Ltd [1989] 3 NZILR 82;New Zealand Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1992] 3 ERNZ 243;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 |
| Number of Pages | 22 |
| PDF File Link: | 2012_NZERA_Auckland_191.pdf [pdf 100 KB] |