| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 65/09 |
| Hearing date | 26 Mar 2009 |
| Determination date | 20 May 2009 |
| Member | H Doyle |
| Representation | T Wilton ; P Macdonald |
| Location | Christchurch |
| Parties | Morgan v Doug Hood Mining Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Misconduct – Applicant claimed unjustifiably dismissed following alleged serious misconduct – Respondent claimed fair and proper investigation – Respondent alternatively claimed conduct sufficiently serious to justify instant dismissal - Applicant operating excavator at night when excavator rolled over – Incident caused damage of $1 million – Accident investigation held – Applicant claimed bench set-up to support excavator reasonable but concerned about base of set-up – Concern not raised to supervisor – Applicant tried ascertaining position of tracks while operating excavator - Tracks slid causing loss of control – Investigation concluded driver error due to lack of awareness of excavator track – Respondent advised applicant’s union leader (“W”) of decision to dismiss but no warning given to applicant – W requested report but request declined - Applicant dismissed for driver error amounting to serious misconduct – Applicant claimed firstly unfair investigation and second, serious misconduct unreasonable - Respondent argued notwithstanding process, serious misconduct warranted - Authority found investigation procedurally inadequate – Found applicant not advised conduct considered serious misconduct during investigation - Found applicant not given opportunity for explanation with benefit of report – Found no opportunity to answer allegation lack of awareness caused incident - Found communication between respondent and W did not constitute opportunity for explanation - Found failure to provide report unreasonable – Found incumbent on employer to provide employee with information used to make employment decisions – Found investigation process breached collective employment agreement - Found no warning of dismissal given - Found conclusion of serious misconduct unreasonable – Found applicant’s experience in operating excavator minimal – Found applicant’s assessment of bench set-up and assertion tried checking track should be considered – Report found no recklessness, negligence or aggravating factors – Found if applicant seen report, answered allegations, given opportunity to explain then serious misconduct may not have been concluded – Dismissal unjustified – REMEDIES – Found 25 percent contributory conduct – Driver error sufficient to warrant written warning – Order for reinstatement made – Applicant’s record “blemish-free” and applicant inducted back into workplace – Reimbursement of lost wages for period between date of dismissal and reinstatement less other earnings - $8,000 compensation appropriate – Plant Operator |
| Result | Application granted ; Reinstatement ordered ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation ($8,000 reduced to $6,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s103A;ERA s125 |
| Cases Cited | Air New Zealand Ltd v Andrea Hudson [2006] ERNZ 415;Chief Executive of Unitech of Technology v Henderson, unreported, Colgan CJ, 19 Mar 2007, AC12/07;Click Clack International Ltd v James [1994] 1 ERNZ 15;Health Waikato Ltd v Tebbutt [2003] 2 ERNZ 398;New Zealand (with exceptions) Food Processing IUOW v Unilever [1990] 1 NZILR 35;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 |
| Number of Pages | 19 |
| PDF File Link: | ca 65_09.pdf [pdf 68 KB] |