| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 82 |
| Hearing date | 6 June 2012 |
| Determination date | 24 July 2012 |
| Member | G J Wood |
| Representation | D Calder ; G Nelson |
| Location | Wellington |
| Parties | Dacar v Care Park New Zealand Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed by respondent – Authority found respondent failed to conduct full investigation into allegations made – Found applicant unjustifiably disadvantaged by suspension - Found failure by respondent to notify applicant of possible dismissal due to his equivocal statements procedurally unfair –Found dismissal unlikely open to fair and reasonable employee without further investigation - Found no reasonable substantive grounds for dismissal – Dismissal unjustified – REMEDIES – No contributory conduct - Respondent to pay applicant $6,926 reimbursement of lost wages - $5000 compensation appropriate - Shuttle bus driver |
| Abstract | Applicant employed by respondent as shuttle bus driver. Applicant claimed unjustifiably disadvantaged by suspension and unjustifiably dismissed by respondent. Respondent received complaint from customer regarding applicant. Complaint included allegation of speeding, failing to help customers with bags and talking to fellow employee in Somali without regard to customers. Respondent manager (“M”) investigated complaint. M directed supervisor (“S”) to suspend applicant on full pay. Applicant suspended. Applicant told to attend meeting following day and could obtain representation. Applicant told job at risk. Applicant did not obtain representation. M did not conduct any further investigation before meeting. Applicant asked at meeting whether applicant was speeding. Applicant was unclear in his response. M considered response unsatisfactory and no longer had trust and confidence in the applicant as an employee. Applicant dismissed.;AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Consultation should have been undertaken with applicant before suspension. Suspension unilateral act by respondent and not procedurally fair. Applicant unjustifiably disadvantaged by suspension. Authority accepted M thought complaint genuine and had no option but to investigate. Respondent failed to interview other employee who was in shuttle at the time of alleged speeding. Respondent failed to consider letter from S stating S had never witnessed applicant speed. Failure by respondent to notify applicant of possible dismissal due to his equivocal statements procedurally unfair. Difficult to see how dismissal open to fair and reasonable employee without further investigation. Substance of decision to dismiss applicant unreasonable. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $6,926 reimbursement of lost wages. $5000 compensation appropriate. |
| Result | Application granted; Reimbursement of lost wages ($6,926.40); Compensation for humiliation etc ($5000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A – ERA s103A(3) – ERA s103A(4) – ERA s103A(5) |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELR 40;Managh (t/a John Managh & Associates and Caf� Down Under Ltd) v Wallington [1998] 2 ERNZ 337; [1988] 3 NZLR 546;Singh v Sherildee Holdings Ltd t/a New World Opotiki unreported, Couch J, 22 Sept 2005, AC53/05 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Wellington_82.pdf [pdf 174 KB] |