| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 504 |
| Hearing date | 25 Sep 2014 |
| Determination date | 08 December 2014 |
| Member | R Arthur |
| Representation | T Henry-Win ; R Bilkey |
| Location | Auckland |
| Parties | Cochrane v Kings Transport & Logistics (NZ) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Whether applicant breached road rules – Driving with unrestrained child on passenger’s lap – Triangular employment relationship – Whether applicant used aggressive and offensive language to respondent’s client’s supervisor – Truck driver |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant not advised properly that could be dismissed at disciplinary meeting. Respondent did not speak to supervisor of respondent’s client or person who witnessed argument between applicant and supervisor. Limited nature of inquiry conducted by respondent influenced too strongly by commercial imperative of respondent’s relationship as service provider to client. Respondent failed to conduct sufficient investigation. Applicant’s admission of basic facts not sufficient for finding of serious misconduct given investigation needed of contextual factors and extent to which respondent’s actions or supervisor’s actions contributed to situation. Dismissal predetermined. Applicant unable to address two decision-makers directly. Moving truck with unrestrained child and rude comments to supervisor misconduct. Respondent’s investigation insufficient to conclude applicant’s argument with client’s supervisor amounted to harassment or damaged respondent’s reputation seriously. Fair and reasonable employer could not conclude applicant’s breach of road safety rules so serious as to warrant summary dismissal. Dismissal unjustified. REMEDIES: 15 per cent contributory conduct. Respondent to pay applicant $7,956 reimbursement of lost wages. $5,100 compensation appropriate. |
| Result | Application granted ; Contributory conduct (15%) ; Reimbursement of lost wages ($7,956) ; Compensation for humiliation etc ($5,100) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(3)(a);ERA s124;ERA s128;ERA s174 |
| Cases Cited | G & H Trade Training Ltd v Crewther [2002] 1 ERNZ 513;Harris v The Warehouse Ltd [2014] NZEmpC 188;Honda NZ Ltd v NZ (with exceptions) Shipwrights etc Union (1990) ERNZ Sel Cas 855 ; [1991] 1 NZLR 392;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 |
| Number of Pages | 16 |
| PDF File Link: | 2014_NZERA_Auckland_504.pdf [pdf 339 KB] |