| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 100/09 |
| Hearing date | 25 Jun 2009 |
| Determination date | 03 August 2009 |
| Member | P R Stapp |
| Representation | M Andrews ; R Pearson (Respondent in person) |
| Location | Wellington |
| Parties | Waaka v STL Linehaul Ltd and Anor |
| Other Parties | Pearson |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant’s work vehicle damaged then broke down - Applicant received speeding ticket – On next job, applicant made arrangements differing from first respondent’s instructions – Branch manager dismissed applicant on telephone – Respondents discovered speeding ticket and three bottles of whiskey in applicant’s work vehicles – Applicant’s representative requested reasons for dismissal and sought mediation – Respondents replied concluded applicant did not have experience required for job because had not checked load and mechanics properly and was witnessed speeding – Respondents stated after finding alcohol and speeding ticket no choice but to dismiss – Authority found no investigation conducted – Found no opportunity for applicant to comment on allegations before dismissed – Found applicant accepted speeding but explained alcohol bottles as personal gift and denied allegation that did not check load and mechanics – Found speeding ticket and whiskey bottles discovered after dismissal – Found fair and reasonable employer would not have dismissed applicant without proper and fair investigation – Dismissal unjustified – Remedies – Applicant found two days temporary work but no further alternative employment – Authority found light evidence of mitigating loss – Authority found allegations not sufficiently substantiated to warrant deduction from reimbursement of lost wages for contributory conduct – However, deduction for applicant’s contributory conduct appropriate for applicant failing to advise respondent of activities – Applicant entitled to eight weeks lost wages – Authority found applicant upset at dismissal on telephone and suggestion was drink driving - $3,000 compensation appropriate - PENALTY – Authority found employee details document fell short of meeting statutory requirements for employment agreement (“EA”) – Found no defence for not providing EA that applicant on trial or probationary period – No penalty sought for failure to provide written EA – Applicant sought penalties for first respondent’s failure to comply with direction made by Authority, failure to attend mediation, failure to follow dispute resolution processes and failure to produce records as requested – Applicant sought penalties against second respondent personally for aiding and abetting breaches – Authority found respondents breached duty of good faith in not attending mediation after direction from Authority – However, found employment relationship problem really about personal grievance, not penalty actions – Penalties declined - COSTS – Authority found applicant incurred unnecessary costs in Authority’s investigation as first respondent did not attend mediation and try to save costs – Found costs to follow event – Under tariff approach, applicant entitled to $2,000 contribution to costs – Driver |
| Result | Application granted (dismissal) ; Reimbursement of lost wages ($8,560)(3 months reduced to 8 weeks) ; Compensation for humiliation etc ($4,500 reduced to $3,000) ; Application dismissed (penalty) ; Costs in favour of applicant ($2,000) ; Disbursements in favour of applicant ($70)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s123(1)(b);ERA s128(2) |
| Number of Pages | 7 |
| PDF File Link: | wa 100_09.pdf [pdf 25 KB] |