| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 129 |
| Hearing date | 14 Sep 2012 |
| Determination date | 23 October 2012 |
| Member | M Ryan |
| Representation | K O'Sullivan ; S J Davies, N Pilcher |
| Parties | Waaka v City Line (N.Z) Ltd t/a Valley Flyer |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by respondent’s failure to follow disciplinary process in collective employment agreement (“CEA”) and unjustifiably dismissed by respondent – Authority found fair and reasonable employer could not form opinion applicant repudiated employment agreement (“EA”) – Found applicant did not repudiate EA – Found applicant dismissed – Found respondent did not follow contractual process relating to investigation of behaviour of concern and did not afford applicant opportunity to provide explanation – Applicant unjustifiably disadvantaged by respondent’s failure to follow disciplinary process in CEA – Found respondent’s decision to disallow applicant opportunity to explain conduct not actions of fair and reasonable employer and procedure undertaken by respondent unjustified – Dismissal unjustified – REMEDIES – Reinstatement not practicable and reasonable – No contributory conduct (unjustified disadvantage) – 50 per cent contributory conduct (unjustified dismissal) - $6,000 compensation appropriate for unjustified disadvantage and $4,000 compensation appropriate for unjustified dismissal – Bus driver |
| Abstract | Applicant employed by respondent as bus driver. Applicant claimed unjustifiably disadvantaged by respondent’s failure to follow disciplinary process in collective employment agreement (“CEA”) and unjustifiably dismissed by respondent. Applicant involved in verbal altercation with operations manager (“B”) after applicant’s children left on bus. B claimed told applicant to go home after applicant swore at B and applicant then threatened to make sure B would be ‘gone tomorrow’. B claimed told applicant would be meeting to discuss applicant’s behaviour. Applicant accepted swore at B and told B could ‘stick’ job but only after told to go home by B. Applicant denied threatening B’s position. Respondent’s human resources manager spoke to B and determined applicant’s behaviour gross insubordination and disciplinary process would not alter conclusion. Applicant dismissed. Respondent claimed applicant not dismissed as statement B could ‘stick’ job amounted to repudiation of employment agreement (“EA”) and respondent elected to cancel EA.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant’s comments entirely inappropriate but conduct not of sufficient gravity to evidence repudiation of EA. Respondent unable to derogate from obligations to act fairly and reasonably including obligation to seek explanation from applicant before reaching conclusion whether EA repudiated. Fair and reasonable employer could not form opinion applicant repudiated EA without further inquiry. Applicant did not repudiate EA. If applicant did repudiate EA, B’s statement applicant would be required to attend later meeting affirmed EA and respondent not entitled to cancel EA. Applicant dismissed. Respondent did not follow contractual process relating to investigation of behaviour of concern and did not afford applicant opportunity to provide explanation. Applicant unjustifiably disadvantaged by respondent’s failure to follow disciplinary process in CEA. Possibly some basis for respondent to conclude dismissal available option. Respondent’s decision to disallow applicant opportunity to explain conduct not actions of fair and reasonable employer and procedure undertaken by respondent unjustified. Dismissal unjustified. REMEDIES: Applicant’s behaviour had significant negative impact on B and no reasonable prospect sufficiently harmonious employment relationship able to be restored. Reinstatement not practicable and reasonable. No contributory conduct (unjustified disadvantage). 50 per cent contributory conduct (unjustified dismissal). $6,000 compensation appropriate for unjustified disadvantage and $4,000 compensation appropriate for unjustified dismissal. |
| Result | Applications granted; Contributory conduct (50%)(unjustified dismissal); Compensation for humiliation etc ($6,000)(unjustified disadvantage)($4,000)(unjustified dismissal); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Contractual Remedies Act 1979;Contractual Remedies Act 1979 s7;Contractual Remedies Act 1979 s7(2);Contractual Remedies Act 1979 s7(5);Employment Relations Amendment Act 2010 s15;ERA s103A;ERA s103A(3);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s124;ERA s125(2) |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Argosy Imports Ltd v Lineham [1998] 3 ERNZ 976;John v Rees [1970] 1 Ch 345;NZ (with Exceptions) Food Processing etc IUOW v Unilever New Zealand Ltd (1990) ERNZ Sel Cas 582;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Wellington_129.pdf [pdf 3.9 MB] |