| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 114/08 |
| Determination date | 26 August 2008 |
| Member | D Asher |
| Representation | P Cranney ; G Tayler |
| Location | Wellington |
| Parties | Ripohau v Bridgeman Concrete (Hawkes Bay) Ltd |
| Summary | INJUNCTION - Application for interim reinstatement - Applicant dismissed following inquiry into allegations of unsafe driving and that harassed co-worker (“X”) because not member of applicant’s union - Authority found applicant had arguable case - Respondent submitted remedy of reinstatement weak because of delay in filing proceedings and applicant’s silence during that period - Authority did not accept that conclusion because would result in applicant having to bear consequences of representative’s admitted responsibility for delay in filing application - Authority noted respondent filled applicant’s position very quickly; within three days of dismissal - Found balance of convenience favoured applicant - Authority gave greater regard to applicant’s continued unemployment, status as family breadwinner, family’s financial obligations, and delay before substantive investigation could be scheduled than gave to delay in filing application - Authority found respondent replaced applicant while conscious of risk of challenge to its summary dismissal decision - Found applicant should not bear consequences of respondent’s initiative in filling position so quickly - Authority did not accept other remedies effectively available to applicant if substantive application succeed because of delay that would result from setting down, and awaiting outcome of, substantive investigation - Authority found overall justice favoured applicant - Found evidence of background of conflict between applicant and X, no evidence of intent on applicant’s part, respondent’s investigation did not uphold all of complaints against applicant, and applicant’s credible account for what might have caused one of incidents - Found questionable degree of seriousness of alleged unsafe driving - Found respondent applied ‘zero tolerance’ policy whereas some case law required cautionary approach to such a policy and consideration of alternatives to dismissal - Found applicant’s decision based on preferring X’s version to applicant’s whereas no evidence of previous warnings for dangerous driving or anything other than good working relationship between parties - Application for interim reinstatement granted - Truck driver |
| Result | Application granted ; Costs reserved ; Reinstatement granted (interim) |
| Main Category | Injunction |
| Statutes | ERA s127;ERA s127(2);ERA s159 |
| Cases Cited | Housham v Juken New Zealand Ltd [2007] 4 NZELR 389 |
| Number of Pages | 8 |
| PDF File Link: | wa 114_08.pdf [pdf 34 KB] |