| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 40 |
| Hearing date | 12 Nov 2013 |
| Determination date | 17 March 2014 |
| Member | C Hickey |
| Representation | D Vinnicombe ; G Bevan |
| Location | Christchurch |
| Parties | Lowe v Bailey Tanks Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Previous discussion about infringement notice for speeding - 10,000 litre tank fell of back of applicant's truck - Whether applicant knew load not secured properly - Whether applicant refused to give commitment to obey speed limit and to ensure loads secured properly - Warning from Police for driving too fast - Driver |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Applicant refused to give guarantee would not speed again. Fair and reasonable employer entitled to expect absolute commitment from professional driver not to speed. Fair and reasonable employer could not have concluded applicant received second infringement notice for speeding when applicant received only warning. Applicant believed had been no consequence for earlier speeding infringement notice. Applicant told respondent had decided load secure. Even if applicant decided load not secure, applicant's behaviour negligent at most. Fundamental duty of driver to check security of load and loss of tank from truck capable of being serious misconduct. Unfair that person who loaded truck not held to account for loss of tank as well as applicant. Respondent's investigation into loss of tank sufficient but no investigation into whether applicant received second speeding infringement notice. Respondent raised concerns with applicant but never told applicant would be dismissed if did not commit to not speeding again and ensuring loads secured. No reasonable opportunity to answer respondent's concerns although respondent considered explanations given. Respondent's use of three letters in one envelope unfortunately complex and letters inviting applicant to disciplinary meetings not clear enough about respondent's concerns to allow applicant to prepare properly. Where dismissal possible outcome fair and reasonable employer likely to advise employee to bring representative, rather than stating employee entitled to bring representative. Letter insufficient to warn applicant dismissal real possibility. Dismissal unjustified. REMEDIES: 40 per cent contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. Leave reserved for parties to return to Authority if unable to agree quantum. $4,200 compensation appropriate. |
| Result | Application granted ; Contributory conduct (40%) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($4,200) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d);ERA s103A(4);ERA s124;ERA s128(2);Land Transport Act 1998 s9 |
| Cases Cited | Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483 |
| Number of Pages | 16 |
| PDF File Link: | 2014_NZERA_Christchurch_40.pdf [pdf 225 KB] |