| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 465 |
| Hearing date | 15 Oct 2012 |
| Determination date | 19 December 2012 |
| Member | J Crichton |
| Representation | M Nutsford ; J Turner |
| Location | Auckland |
| Parties | Murphy v Mitech Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by respondent’s refusal to provide applicant company vehicle or allow applicant to return to work following accident and unjustifiably dismissed by respondent – Authority found applicant not unjustifiably disadvantaged by respondent’s decision to remove vehicle – Found respondent expected applicant to return to work in workshop when medically able – Found applicant’s return to work prevented by applicant’s failure to keep respondent informed of medical progress, applicant’s dogmatic insistence respondent provide applicant another vehicle and applicant’s inability to get to work - Found applicant not unjustifiably disadvantaged by respondent’s refusal to allow applicant to return to work following accident – Found respondent conducted adequate inquiry into accident - Dismissal justified – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought recovery of insurance excess - Applicant to pay respondent $500 recovery of monies – Customer Service Engineer |
| Abstract | Applicant employed by respondent as customer service engineer. Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent. Applicant provided with company vehicle. Respondent’s policy included statement careless handling of vehicle may lead to termination of right to use vehicle and possibly employment and employee may be liable for insurance excess. Respondent received complaint from member of public claiming applicant’s driving reckless and dangerous. Applicant received verbal warning. Eight months later respondent received further complaint from member of public claiming applicant driving in dangerous and aggressive manner. Applicant received final written warning stating further driving incidents would result in removal of company vehicle. Six months later applicant involved in accident in company vehicle and applicant injured. Respondent advised that applicant at fault. Company vehicle declared total loss by respondent’s insurers and respondent required to pay excess. Respondent refused applicant company vehicle while completing inquiry into accident. Applicant claimed unjustifiably disadvantaged by respondent’s refusal to allow applicant use of company vehicle. Respondent offered applicant workshop employment during investigation. Respondent not made aware applicant medically able to return to work. Applicant claimed unjustifiably disadvantaged by respondent’s refusal to allow applicant to return to work following accident. Applicant concerned about finding alternative transport to work. During succession of meetings respondent asked applicant for information about accident. Applicant claimed respondent obsessed about investigation into causes of accident. Applicant unable to remember anything new. Respondent concerned about applicant returning to work due to applicant’s driving record and health. Applicant dismissed. Respondent sought recovery of insurance excess.;AUTHORITY FOUND;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant had history of driving issues and had been warned further driving incidents would result in removal of company vehicle. Applicant not unjustifiably disadvantaged by respondent’s decision to remove vehicle. Respondent expected applicant to return to work in workshop when medically able. Applicant’s return to work prevented by applicant’s failure to keep respondent informed of medical progress, applicant’s dogmatic insistence respondent provide applicant another vehicle and applicant’s inability to get to work. Inevitable respondent would insist on trying to understand whether accident applicant’s fault. Respondent not responsible for events outside respondent’s control. Applicant not unjustifiably disadvantaged by respondent’s refusal to allow applicant to return to work following accident. Respondent conducted adequate inquiry into accident and waited to see if applicant would remember anything about accident. Applicant failed to assist respondent with inquiry into accident. Dismissal justified.;COUNTERCLAIM – RECOVERY OF MONIES: Applicant conceded had responsibility to pay insurance excess under conditions of employment. Applicant to pay respondent $500 recovery of monies |
| Result | Application granted (counterclaim - recovery of monies); Recovery of monies ($500); Applications dismissed (unjustified disadvantage)(unjustified dismissal); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Number of Pages | 20 |
| PDF File Link: | 2012_NZERA_Auckland_465.pdf [pdf 277 KB] |