| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 73 |
| Determination date | 02 July 2012 |
| Member | M Ryan |
| Representation | S Waring; S Davies |
| Location | Wellington |
| Parties | Chalmers v City Line (NZ) Ltd t/a Valley Flyer"" |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed by respondent - Authority found respondent decision to suspend applicant not option available to fair and reasonable employer - Applicant unjustifiably disadvantaged by suspension – Found respondent reasonably concluded applicant had consumed alcohol and authorised another employee to bring and consume alcohol at work site - Found respondent decision to dismiss applicant option available to fair and reasonable employer - Dismissal justified - REMEDIES: 20 per cent contributory conduct - $1,600 compensation appropriate - PENALTY: Authority did not have jurisdiction to order penalty against respondent for failure to provide statement of reasons for dismissal - Leading Driver |
| Abstract | Applicant employed as leading driver. Applicant claimed unjustifiably disadvantaged by suspension, unjustifiably dismissed and respondent breached good faith obligations. Applicant sought penalty for respondent’s failure to provide statement of reasons for dismissal. Respondent claimed applicant breached respondent’s ‘zero tolerance’ alcohol policy. Respondent employee (“W”) claimed applicant had consumed alcohol at workplace but respondent decided not to take formal action. W claimed applicant allowed other employees to consume alcohol at respondent work site, had distributed alcohol to some employees and applicant intoxicated at work site. Applicant claimed told everyone at function could not consume alcohol if had shift that evening and unaware employees could not enter work site after had consumed alcohol. Respondent manager (“C”) received complaint that applicant had placed W’s complaint on employee noticeboard. Applicant claimed had returned after work hours to remove W’s complaint from noticeboard but had previously advised C had consumed alcohol that day. Respondent received anonymous complaint applicant encouraged other employees to bully and threaten W. Investigation commenced and applicant suspended before dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Respondent gave applicant opportunity to comment and followed procedurally fair process in relation to applicant’s dismissal. Applicant’s suspension during disciplinary process did not breach parties’ employment agreement. Respondent’s failure to provide applicant with copy of anonymous complaint meant applicant had insufficient information to respond to proposed suspension. Respondent decision to suspend applicant not option available to fair and reasonable employer. Applicant unjustifiably disadvantaged by suspension. However respondent’s decision applicant would remain suspended option available to fair and reasonable employer. Respondent reasonably concluded applicant aware should not consume alcohol before returning to work site, alcohol prohibited on work sites and applicant had consumed alcohol before attended respondent function and returned to workplace to remove complaint. Respondent reasonably concluded applicant authorised another employee to bring alcohol to worksite and authorised employees to consume alcohol at work site. No disparity of treatment. Respondent decision to dismiss applicant option available to fair and reasonable employer. No evidence respondent breached good faith obligations. Dismissal justified. REMEDIES: 20 per cent contributory conduct. $1,600 compensation appropriate.;PENALTY: Authority did not have jurisdiction to order penalty against respondent for failure to provide statement of reasons for dismissal. No penalty. |
| Result | Application granted (unjustified disadvantage) ; Contributory conduct (20%) ; Compensation for humiliation etc ($1,600) ; Applications dismissed (unjustified dismissal and penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A;ERA s103A(3);ERA s103A(4);ERA s103A(5);ERA s120;ERA s124;ERA s133 |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Chief Executive of the Department of Inland Revenue v Buchanan [2005] ERNZ 767;Wellington Road Transport IUOW v Fletcher Construction Co Ltd [1983] ACJ 656 |
| Number of Pages | 33 |
| PDF File Link: | 2012_NZERA_Wellington_73.pdf [pdf 417 KB] |