| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 402 |
| Hearing date | 7 Jul 2016 - 8 Jul 2016 (2 days) |
| Determination date | 09 December 2016 |
| Member | N Craig |
| Representation | R Staunton ; Transdev Auckland Ltd |
| Location | Auckland |
| Parties | Staunton v Transdev Auckland Ltd |
| Summary | BREACH OF CONTRACT – Applicant claimed respondent breached relevant collective agreement (“CEA”) – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Failure to follow lawful and reasonable instruction – Disparity of treatment - Train driver |
| Abstract | AUTHORITY FOUND –BREACH OF CONTRACT: Reasonable for respondent to wait to make training available until pay issue resolved. No breach of CEA regarding training. Respondent did not refuse to consider and work through health and safety issues raised. Extensive union involvement occurred and several forums established to deal with issues. No breach of respondent’s health and safety obligations under CEA. Respondent not in breach of CEA by requiring drivers to drive different trains without additional pay. No breach of contract.UNJUSTIFIED DISMISSAL: Situations of applicant and other driver not sufficiently similar to say that respondent treated applicant differently. Applicant had some issues regarding health and safety but did not provide sufficient evidence to prove that tasks in question so dangerous that applicant entitled not to undertake them or that serious harm likely to be caused. Applicant did not have proper basis for refusal to undertake instruction. Refusal wilful disobedience of lawful and reasonable instruction, amounting to serious misconduct for which fair and reasonable employer could have dismissed applicant. Respondent followed fair process in dismissing applicant. No breach of good faith. Dismissal justified. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103 ; ERA s103A ; ERA s103A(3) ; ERA s174C(3)(a) ; ERA s174c(4) ; ERA s174E ; Health and Safety in Employment Act 1992 s28A |
| Cases Cited | Butcher v OCS Ltd [2008] ERNZ 367 (EmpC) ; Duncan v Sky Network Television Ltd [1998] 1 ERNZ 354 (EmpC) ; Wellington, Taranaki and Marlborough Clerical, Administrative and Related IUOW Workers v College Group Ltd [1984] ACJ 315 (AC) |
| Number of Pages | 22 |
| PDF File Link: | 2016_NZERA_Auckland_402.pdf [pdf 287 KB] |