| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 433/08 |
| Hearing date | 23 Sep 2008 |
| Determination date | 22 December 2008 |
| Member | R Arthur |
| Representation | J Coyle ; G Craven |
| Location | Auckland |
| Parties | McLachlan v Hayward Coachlines Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Respondent employed applicant as bus driver – Applicant driving bus when involved in accident where driver of other vehicle killed – Applicant claimed treated unfairly following accident and dismissed – Applicant also sought pay owing – No health and safety plans and procedures in place to manage physical and emotional needs of drivers involved in accidents – Authority found only minimal steps taken to care for applicant following accident – Respondent checked to ensure applicant not driving beyond permitted hours and offered applicant food – Applicant not checked by ambulance staff – Authority found respondent should have arranged check-up – Found respondent gave no consideration to shock suffered by applicant after accident – Respondent reasonably expected to identify risk of traffic accidents as part of hazard identification process under Health and Safety in Employment Act 1992 – Disadvantage established – UNJUSTIFIED DISMISSAL – Redundancy – Respondent argued no bus available for applicant following accident – Respondent had told applicant that was rearranging coaches and drivers – Authority accepted evidence of applicant’s friend who alleged told by respondent that applicant no longer an employee – Respondent argued spoke to applicant about lack of work but did not dismiss applicant – Authority satisfied applicant made redundant – Authority accepted genuine reasons for redundancy – Applicant’s skills surplus to needs of respondent due to accident and damage to bus – However, respondent failed to consult with applicant about redundancy and alternatives – Dismissal procedurally unjustified – Remedies – Accident legislation barred any compensation as result of accident – $5000 compensation appropriate for loss of dignity and injury to feelings – PENALTY – $500 penalty awarded for failure to pay holiday pay and supply wage and time records – COSTS – Respondent to pay applicant $2070 as contribution to costs – Bus driver |
| Result | Application granted (Disadvantage)(Dismissal) ; Arrears of holiday pay ($1034.35) ; Compensation for humiliation etc ($5000) ; Penalty ($500)(Payable to applicant) ; Costs in favour of applicant ($2070) |
| Main Category | Personal Grievance |
| Statutes | ERA s122;Health and Safety in Employment Act 1992 |
| Cases Cited | Jack v Attorney-General in respect of the Department for Courts [2002] 1 ERNZ 720 |
| Number of Pages | 9 |
| PDF File Link: | aa 433_08.pdf [pdf 32 KB] |