| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 41 |
| Hearing date | 12 Dec 2012 |
| Determination date | 03 April 2013 |
| Member | T MacKinnon |
| Representation | K Mair ; D Erickson |
| Location | Whanganui |
| Parties | Wikaira v Transpacific Industries Group (NZ) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority found respondent did not predetermine dismissal of applicant by calling applicant’s explanation for not immediately reporting incident ‘irrelevant’ in investigation report as reporting delay not cited by respondent as reason for dismissing applicant rather applicant’s driving conduct which respondent concluded gross negligence – Found statement in investigation report applicant negligent not predetermination but preliminary conclusion respondent entitled to formulate at that point – Found respondent relied on applicant’s acknowledgement of fault during investigation while forming conclusion and comments made by applicant to justify actions made after applicant dismissed – Found reasonable for respondent to consider loss of confidence in applicant’s judgement precluded applicant’s continued employment with respondent - Dismissal justified - Driver |
| Abstract | Applicant employed by respondent as driver. Applicant claimed unjustifiably dismissed by respondent. Applicant’s truck partially blocked in car park by vehicle owned by member of public (“S”). S standing beside vehicle and offered to move vehicle but applicant believed sufficient space to pass. Applicant claimed expected S to move out of way or be inside vehicle. When applicant moved truck forward S trapped between vehicle and truck. S taken to hospital. Applicant gave statement to police, left scene and completed job. Applicant returned to workplace, contacted branch supervisor (“R”) regarding incident and wrote accident report. Police issued applicant with warning for careless driving. Respondent initially downgraded severity of incident as informed by police S’s injuries minor although S subsequently diagnosed with fractured pelvis. Respondent later contacted by S who claimed applicant’s anger contributed to incident. Regional manager (“M”) initiated formal investigation following discussion with applicant, managers, S and police. M sent applicant notice of investigation and notes from preliminary meeting with applicant. Notice outlined number of allegations against applicant. Applicant admitted at investigation meeting misjudged gap between vehicles and not watching S’s position when driving truck. Applicant claimed unsuccessfully tried to contact R after giving police statement. Applicant claimed did not immediately return to workplace as unaware S seriously injured. M informed applicant in writing respondent believed applicant grossly negligent in operation of truck and applicant failed to take reasonable steps to report incident to applicant’s supervisor. At following meeting respondent claimed applicant grossly negligent during incident resulting in serious injuries for S and respondent brought into disrepute. Applicant dismissed. Applicant claimed respondent predetermined applicant’s dismissal, failed to consider alternatives and did not take into account applicant’s excellent driving record, length of service and fact that one-off incident. Applicant claimed respondent did not consider alternative role to truck driving for applicant.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent carried out thorough investigation into incident and gave applicant reasonable opportunity to respond to concerns before dismissing applicant. M calling applicant’s explanation for not immediately reporting incident 'irrelevant’ not predetermination, as reporting delay not cited by M as reason for dismissing applicant rather applicant’s driving conduct which M concluded gross negligence. M’s statement applicant’s truck damaged S’s vehicle did not show predetermination as comment related to vehicle insurance not investigation of whether applicant guilty of serious misconduct. Statement in investigation report applicant negligent not predetermination but preliminary conclusion respondent entitled to formulate at that point. Respondent relied on applicant’s acknowledgement of fault during investigation while forming conclusion and comments made by applicant to justify actions made after applicant dismissed. Respondent considered alternatives to dismissal but seriousness of applicant’s conduct outweighed possibility of lesser action. Reasonable for respondent to consider loss of confidence in applicant’s judgement precluded applicant’s continued employment with respondent. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s103A |
| Number of Pages | 13 |
| PDF File Link: | 2013_NZERA_Wellington_41.pdf [pdf 259 KB] |