| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 29/10 |
| Hearing date | 20 Oct 2009 - 21 Oct 2009 ( 2 days) |
| Determination date | 10 February 2010 |
| Member | H Doyle |
| Representation | C Smith ; J Rooney |
| Location | Invercargill |
| Parties | Cavanagh v Fonterra Co-Operative Group Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant driving milk tanker when trailer rolled – Respondent’s investigation concluded applicant drove tanker in incorrect and unsafe manner by failing to negotiate corner safely – Caused trailer damage, loss of potential milk revenue, and cost of monitoring potential damage to environment - Applicant dismissed following two disciplinary meetings – Authority found respondent’s overall process fair except for failure to interview co-workers who saw applicant driving shortly before accident – Found failure unfair as could have given accounts of applicant’s driving and whether was reasonable to continue to drive despite weather conditions – Found fact consequences very serious did not mean act producing or contributing to consequences amounted to serious misconduct – Found fair and reasonable employer would have concluded applicant’s actions in entering and failing to take corner safely were careless, inadvertent or at worst negligent, but not wilful, reckless or deliberate – Found fair and reasonable employer would not conclude serious misconduct – Found relationship of trust and confidence not undermined to such degree dismissal warranted – Found collective employment agreement also provided final warning available in cases of serious misconduct where summary dismissal not warranted – Authority found not required to determine applicant’s disparity of treatment argument given above conclusions – Dismissal unjustified – REMEDIES – Found applicant contributed to grievance by not advising respondent drove higher than normal on road to avoid water pooling – Contributory conduct considered in determining remedies, including reinstatement – 70 co-workers signed petition for reinstatement – Authority considered applicant’s failure to accept responsibility and attitude during investigation process – Found reinstatement not practicable – Applicant suffered depression and received sickness benefit – Applicant secured driving position with new employer (“H”) – Respondent advised H of previous dismissal and stated applicant not to enter respondent’s sites in capacity as driver – H terminated applicant’s employment as required applicant to work on respondent’s sites – Applicant obtained further employment but made redundant – Authority found respondent completely frustrated applicant’s employment with H – Found applicant not entitled to reimbursement of lost earnings for entire period due to contributory conduct – Authority awarded 9 months reimbursement of lost wages, less earnings – Found compelling evidence applicant very upset and distressed by dismissals - $12,000 compensation appropriate - Milk tanker operator |
| Result | Application granted ; Reimbursement of lost wages (9 months) ; Compensation for humiliation etc ($12,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s125 |
| Cases Cited | Air New Zealand Ltd v V [2009] ERNZ 185;Angel & Hutton v Fonterra Cooperative Group [2006] ERNZ 1080;Chief Executive of Department of Inland Revenue v Buchanan [2005] ERNZ 765;Click Clack International Ltd v James [1994] 1 ERNZ 15;Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;NZEI v Board of Trustees of Auckland Normal Intermediate School [1992] 3 ERNZ 243;Pairama v Firth Industries Ltd unreported, R Monaghan, 28 May 2004, AA 188/04;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 |
| Number of Pages | 26 |
| PDF File Link: | ca 29_10.pdf [pdf 79 KB] |