| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 49/07 |
| Hearing date | 22 Mar 2007 |
| Determination date | 04 May 2007 |
| Member | H Doyle |
| Representation | O Johnstone ; C French |
| Location | Invercargill |
| Parties | McLennan v Tulloch Transport Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct - Applicant on final warning - Dismissed for “clipping” traffic sign with wing mirror while driving truck - Respondent conducted investigation - Respondent took measurements and concluded in report applicant must have driven outside white line and without due care, in breach of rules - Constituted “misuse” of company vehicle and serious misconduct under employment agreement – Authority found investigation not full and fair – Not told reason for dismissal was misuse until dismissal - Fair and reasonable employer would have provided applicant with measurements and report - Misuse" usually involved deliberate use of vehicle other than for work purposes – Incident accidental while using truck for work purposes – Fair and reasonable employer would not have concluded misuse and serious misconduct - Could have been viewed as performance issue for which warning and training given – As result, applicant lost opportunity for disciplinary penalty short of dismissal - Open to respondent to impose lesser penalty - However, finely balanced whether would have dismissed applicant as on final warning - Steps taken after incident by reporting and repairing sign tipped balance in applicant's favour – Unjustified dismissal - Remedies - Contributory conduct 20 percent – Awarded one year’s lost wages, less income earned and contribution – Length of service two years – Truck driver" |
| Result | Application granted ; Reimbursement of lost wages (Quantum to be determined)(One year less income earned and contribution) ; Compensation for humiliation etc ($5,000 reduced to $4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Number of Pages | 10 |
| PDF File Link: | ca 49_07.pdf [pdf 49 KB] |