| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 114A/08 |
| Hearing date | 18 Sep 2008 |
| Determination date | 03 October 2008 |
| Member | D Asher |
| Representation | P Cranney ; G Tayler |
| Location | Napier |
| Parties | Ripohau v Bridgemen Concrete (Hawkes Bay) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant summarily dismissed for driving company vehicle dangerously – First allegation that applicant deliberately accelerated vehicle in front of co-worker driver – Second allegation that applicant cut in front of complainant driver – Applicant provided explanation for first incident and denied second incident – Respondent argued carried out investigation and preferred evidence of others to applicant’s – Authority found fair and reasonable employer would not have dismissed applicant after taking proper account of unclear matters - Found date of alleged first incident uncertain – Found witness to incident took no action at time – Found allegations could only be determined by taking one employee’s word against another – Found allegations serious and required evidence as convincing as charges were grave – Found original complaint of first incident different to respondent’s finding – Found respondent properly found was no or insufficient evidence of physical intimidation to support original complaint – Found for same reasons, respondent should also have concluded was no or insufficient evidence to support amended finding applicant twice drove dangerously – Found respondent could not explain why preferred others’ evidence in finding applicant drove dangerously, if it considered that preferred evidence incapable of supporting original allegations – Found respondent did not take proper account of 8-year unblemished driving record – Found respondent dismissed applicant’s health and safety defence to first incident without properly investigating – Found respondent’s investigation failed to establish actual distances between vehicles, thus was in no position to fully and fairly assess original claim that applicant cut “right in front of” complainant – Found respondent unfairly relied on applicant’s statement could see complainant filling out log book, as evidence must have been too close – Authority found if respondent properly investigated, would have discovered complainant actually filling out different book, so applicant may not have been too close – Dismissal unjustified – Remedies - Applicant granted interim reinstatement in interim determination – Respondent argued not practicable as economic downturn reducing demand – Authority satisfied permanent reinstatement appropriate – Authority noted despite Authority’s clear directions, applicant reinstated in interim period to non-driving duties on lesser hourly rate – Authority noted respondent undertook to address Authority’s concerns regarding recovery of wages for that period – Authority noted significant evidence of hurt and humiliation – Found much of impact of dismissal righted by interim and permanent reinstatement – $9,000 compensation appropriate - Driver |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($9,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | NZ (with exceptions) Shipwrights etc Union v Honda NZ Ltd [1989] 3 NZILR 82 |
| Number of Pages | 6 |
| PDF File Link: | wa 114a_08.pdf [pdf 31 KB] |