| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 213 |
| Hearing date | 7 Aug 2012 |
| Determination date | 28 September 2012 |
| Member | C Hickey |
| Representation | D WIlliams ; R Gibson |
| Location | Ashburton |
| Parties | Williams v Talleys Group Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed – Authority noted applicant did not deny had used forklift pallet to lift person contrary to forklift training – Authority found applicant had responsibility to ensure own safety and safety of colleagues – Found breach of important safety consideration and knowledge applicant had been told at least twice by manager not to use forklift pallet meant fair and reasonable employer would have dismissed applicant in all circumstances - Found respondent’s investigation and disciplinary process procedurally fair – Found any disparity in respondent’s treatment of employees explained - No unjustified disadvantage - No evidence respondent breached duty of good faith towards applicant - Dismissal justified - Storeman/Forklift Driver |
| Abstract | Applicant employed as storeman/forklift driver. Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent. Respondent claimed applicant dismissed after disobeyed respondent manager’s instruction and operated forklift with another employee standing on forklift pallet. Applicant attended training course and course included safety code that stated forklift drivers should not allow passengers to ride on forklift pallet. Respondent manager (“G”) told employees not to lift colleague (“R”) on pallet to reach stock and safety cage should be used. G claimed discovered applicant driving forklift with passenger on forklift pallet. Applicant claimed was driving forklift with G standing on pallet prior to being told by G not to lift person using forklift pallet. Applicant claimed later asked to lift up person with forklift pallet and refused in accordance with G’s instructions. Investigation commenced. Applicant admitted had lifted G using forklift pallet but claimed had used forklift that way for last two and half years and unaware safety cage available. Applicant claimed had requested safety gear but not provided by respondent. Applicant dismissed. Respondent employee (“P”) claimed respondent had not supplied safety cage when requested. P claimed told by forklift trainer (“S”) number of times not to use pallet to lift person but practice more convenient as safety cage not always available. P claimed manager (“L”) at time gave P and applicant impression could lift someone on forklift pallet provided L did not see it. S claimed confident applicant very aware safety cage must be used. Respondent operations manager (“M”) claimed respondent had safety cage on site and management unaware applicant regularly used forklift pallet to lift people. Applicant claimed was disparity of treatment as G had been seen standing on forklift pallet after applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: During applicant’s employment one safety cage available. Respondent decided to dismiss applicant unaware S had repeatedly told applicant to use safety cage. Noted applicant did not deny had used forklift pallet to lift person. Reasonable for respondent to accept G had told applicant not to use forklift pallet to lift person before G observed applicant using forklift pallet to lift passenger. When respondent made decision applicant should be dismissed respondent had no evidence applicant disputed G’s version of events. Applicant had responsibility to ensure own safety and safety of colleagues. Applicant did not make G or other management aware did not have equipment to do job or that took too long to get safety cage. Breach of important safety consideration and knowledge applicant had been told at least twice by G not to use forklift pallet meant fair and reasonable employer would have dismissed applicant in all circumstances. Respondent’s investigation and disciplinary process procedurally fair. Highly unlikely G carried on forklift without appropriate equipment. Any disparity in respondent’s treatment of employees explained. No unjustified disadvantage. No evidence respondent breached duty of good faith towards applicant. Dismissal justified. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s130A |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] ERNZ 415;Air New Zealand Ltd v V [2009] ERNZ 185;Chief Executive Officer v Buchanan (No 2) [2005] ERNZ 767 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Christchurch_213.pdf [pdf 285 KB] |