| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2014] NZERA Wellington 46 |
| Hearing date | 5 Feb 2014 |
| Determination date | 13 May 2014 |
| Member | T MacKinnon |
| Representation | G Clarke ; S Fraser |
| Location | Wellington |
| Parties | McLennan v New Zealand Post Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Complaint from respondent's general manager (B") about applicant's driving - Whether applicant drove with unsecured mail - Whether applicant drove erratically - Whether applicant used mobile phone while driving motorcycle - Previous written warning for behaving in disorderly manner and using inappropriate language - Suspension - Postie" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Fair and reasonable employer would have carried out more thorough investigation into applicant's explanations regarding unsecured mail and erratic driving. Unreasonable for respondent to rely solely on condition of Velcro to conclude panniers containing mail would not have blown open if secured properly. Respondent's reliance on B's observation to conclude applicant drove with one hand unreasonable given B's position on road and inconsistency in B's account. Respondent did not put to applicant view that implausible for applicant to be riding one handed in order to remove grit from eye. Respondent's reliance on ideal course of action of pulling over immediately unreasonable and failed to take into account instinctive reaction to intense irritation caused by foreign object blowing into eye. Likely respondent influenced by tenor of B's observations and would have been helpful if other employees were asked about experiences of effect of strong southerly wind on vehicle control. Applicant required to obey all road rules and breached rules by using mobile phone while operating motor vehicle. Collective employment agreement allowed previous unrelated warning to be considered. Fact no comment made on mobile phone use at previous refresher courses affected reliance respondent placed on applicant's attendance at recent refresher course. Applicant's use of mobile phone warranted disciplinary action and raised valid concerns over safety but did not justify dismissal. Dismissal unjustified. REMEDIES: Reinstatement not practicable. 30 per cent contributory conduct. Respondent to pay applicant $5,110 reimbursement of lost wages. $4,900 compensation appropriate. |
| Result | Application granted ; Contributory conduct (30%) ; Reimbursement of lost wages ($5,110) ; Compensation for humiliation etc ($4,900) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3);Land Transport (Road User) Rule 2004 r7.3A |
| Cases Cited | Sefo v Sealord Shellfish Ltd [2008] ERNZ 178 |
| Number of Pages | 14 |
| PDF File Link: | 2014_NZERA_Wellington_46.pdf [pdf 199 KB] |