| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 24 |
| Hearing date | 18 Dec 2012 |
| Determination date | 24 January 2013 |
| Member | J Crichton |
| Representation | M Harrison ; R Lambert |
| Location | Whangarei |
| Parties | Moukharris v Northland Waste Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority found applicant knew respondent’s health and safety policy but broke policy without first seeking advice from respondent – Found applicant responsible for safety of vehicle and runners and responsible for disabling of secondary switch - Found no procedural infelicities in respondent’s process resulting in unfairness to applicant and respondent’s investigation sufficient in circumstances – Dismissal justified – Refuse removal driver |
| Abstract | Applicant employed by respondent as refuse removal driver. Applicant claimed unjustifiably dismissed by respondent. Applicant employed to drive rubbish trucks. Respondent made safety modification to vehicles installing secondary switch to operate machinery at back of vehicle. Applicant claimed other employees (“runners”) habitually disabled secondary switch. Applicant claimed unable to see runners’ actions at rear of truck. Respondent claimed secondary switch visible to applicant through rear vision mirror. Applicant reported problems with clutch on vehicle but not viewed as urgent by respondent. Incident occurred where applicant changed normal route by driving down steep street to collect refuse and at times crossed centre line. Manoeuvre observed by respondent’s branch manager (“P”). Manoeuvre banned by respondent’s health and safety policy apart from in pre-approved locations. Applicant claimed manoeuvre safest course due to problems with clutch. P claimed safest course to drive up hill in single gear. Applicant claimed had previously been forced to stop vehicle and top up hydraulic fluid following clutch failure. Applicant suspended. At meeting respondent claimed applicant breached safety policy by crossing centre line and by disabling secondary switch. Applicant claimed P should not have chaired disciplinary meeting and made decision to dismiss given P witnessed incident. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent’s health and safety policy developed in collaboration with employees and clear driving on wrong side of road banned unless particular exemption granted. Applicant knew respondent’s policy but broke policy without first seeking advice from respondent. Problems with clutch would only manifest when changing gears and prudent driver would not use clutch when driving uphill. Applicant responsible for safety of vehicle and runners and responsible for disabling of secondary switch. Respondent genuinely considered applicant’s explanation. Inevitable P would have dual role in process given respondent small employer. No procedural infelicities in respondent’s process resulting in unfairness to applicant and respondent’s investigation sufficient in circumstances. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Number of Pages | 9 |
| PDF File Link: | 2013_NZERA_Auckland_24.pdf [pdf 168 KB] |