| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 204/08 |
| Hearing date | 28 May 2008 |
| Determination date | 10 June 2008 |
| Member | R Arthur |
| Representation | A Hope ; S Menzies |
| Location | Hamilton |
| Parties | Kereopa v Go Bus Transport Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Misconduct - Applicant dismissed after respondent concluded she smoked marijuana with passenger while on duty - Dismissal for serious misconduct not precluded by lack of express reference to it in collective employment agreement (“CEA”) - No complete agreement clause in CEA - Evidence from parties to CEA that dismissal for serious misconduct not intended to be excluded - Open to fair and reasonable employer to conclude no longer had trust and confidence in applicant - Respondent provided with hearsay evidence and did not speak to complainant again as indicated - However, procedural flaws did not affect substantive outcome - Dismissal justified - UNJUSTIFIED DISADVANTAGE - Immediate suspension on pay reasonable in circumstances - Safety issues regarding continuing to drive bus and deal with public - CEA lacked express provision for suspension - Allegations against applicant fell within category of “imminent danger to the employee or others and an inability to perform safety-sensitive work” that could justify suspension without delay - However, unnecessary errors in how suspension carried out - Applicant accompanied at meeting by union delegate who needed to leave shortly to start own shift - Brevity and pressure on meeting meant no proper discussion about circumstances of suspension - No estimate of how long before next meeting or explanation of how or what information would be provided - Applicant disadvantaged by manner of suspension - Remedies - Contributory conduct 100 percent - Applicant admitted giving teenager a cannabis pipe and watching him smoke from it before taking it back - Bus driver |
| Result | Application granted (disadvantage) ; Application dismissed (dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Misuse of Drugs Act 1975 s7(2);Misuse of Drugs Act 1975 s13;Misuse of Drugs Act 1975 s22(3) |
| Cases Cited | Air New Zealand Limited v Hudson [2006] 1 ERNZ 415;Graham v Airways Corporation [2005] 1 ERNZ 587;Man o’War Farm Limited v Bree [2003] 1 ERNZ 83;North Island Wholesale Groceries Limited v Hewin [1992] 2 NZILR 176;Singh v Sherildee Holdings Limited unreported, Couch J, 22 September 2005, AC 53/05 |
| Number of Pages | 12 |
| PDF File Link: | aa 204_08.pdf [pdf 41 KB] |