| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 69/07 |
| Hearing date | 31 Jan 2007 |
| Determination date | 14 March 2007 |
| Member | Y S Oldfield |
| Representation | B Hayes; G Lewis |
| Location | Auckland |
| Parties | Wirihana v Alawaya Cartage Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Serious misconduct - Applicant's truck hit parked car on delivery run - Claimed unfair unpaid suspension forced him to resign - Applicant initially told respondent he was driving at time - Subsequently admitted allowed assistant off-sider" to drive, had accident, and did not stop at scene - Knew assistant did not have licence - Applicant claimed agreed to continue story was driving, but changed mind - Managing director ("MD") instructed applicant be suspended and not paid final pay until MD returned from holiday - Applicant resigned - Employment agreement stated insurance excess recoverable from applicant if damage resulted from negligence or wilful act - Suspension made so matter could be dealt with MD when returned - Not reasonable to make applicant wait three weeks without wages without knowing fate - Entitled to fair, complete process and timely answer - Unpaid suspension serious breach of employment agreement - Untenable for applicant to remain at respondent - Constructive dismissal - Dismissal at time of suspension could not have been justified - Not put to applicant that actions serious misconduct or might justify dismissal - Respondent did not have all relevant information - Actions not those of fair and reasonable employer - Remedies - Applicant permitted unlicenced driver to take wheel of vehicle in his care - Contributory conduct 50 percent - UNJUSTIFIED DISADVANTAGE - Applicant claimed disadvantaged when pressured to lie about accident - Supervisor sanctioned suggestion applicant should lie - Sanctioning amounted to unjustified action - Unjustified disadvantage - No contributory conduct - ARREARS OF WAGES - Applicant claimed payment in lieu of notice - Entitled to payment in full in accordance with employment agreement - Truck driver" |
| Result | Application granted ; Arrears of wages ($1,530)(Notice) ; Reimbursement of lost wages ($3,968.99 reduced to $1,984.44) ; Compensation for humiliation etc ($6,000 reduced to $3,500)(Unjustified dismissal) ; ($500)(Unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 6 |
| PDF File Link: | aa 69_07.pdf [pdf 38 KB] |