| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 53/10 |
| Hearing date | 16 Feb 2010 |
| Determination date | 09 March 2010 |
| Member | P Cheyne |
| Representation | A McKenzie ; G Pollak |
| Location | Hokitika |
| Parties | McCutcheon v Westland Co-Operative Dairy Company Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed unjustifiably dismissed – Respondent argued dismissal justified for gross negligence amounting to serious misconduct – Employment agreement and handbook provided serious misconduct included negligent acts seriously affecting health and safety of people or damage to property – Applicant driving milk tanker truck around bend when accident occurred causing serious damage to truck – Speed sign provided 45kph around bend – Applicant drove at 60kph – First meeting held – Respondent advised applicant formal disciplinary meeting would be held once Police report obtained – Applicant claimed did not speed around bend – Claimed truck trailer tipped over because of sloshing of milk therefore speed not cause of accident – Claimed drove 60kph because speed sign advisory only – Respondent held formal investigation and asked applicant to provide written account of events – Police and Land Transport Authority reports provided no mechanical faults with truck or trailer – Respondent advised dismissal for negligent speeding causing damage and risk to safety possible - Disciplinary meeting held – Applicant explained accident not intentional and did not know what speed travelling at - Respondent believed applicant grossly negligent because accident serious and posed high safety risks to applicant and public – Applicant dismissed – Personal grievance raised - Applicant claimed single negligent act could not constitute serious misconduct – Authority found respondent entitled to have regard to serious consequences of accident – Found respondent’s decision speeding a dereliction of applicant’s duty to drive safely appropriate – Found applicant responsible for excessive speed – Found serious misconduct decision warranted - Applicant claimed dismissal predetermined – Found respondent provided applicant opportunities for explanations – Found applicant admitted to speeding at early stage of investigation – Applicant claimed disparate treatment as another employee caused similar accident however not dismissed – Found no disparate treatment as applicant’s case involved speed as only significant factor of accident – Applicant claimed carelessness at low end of spectrum therefore less culpable – Found claim meritless as applicant speeding – Found respondent had general rule for tank drivers to drive 10kph less than advisory signs – Applicant claimed respondent did not give sufficient regard to Police report – Found respondent conducted own investigation because Police report unavailable to respondent – Found in any event, applicant’s witness statements to Police stated travelling at 60kph – Found dismissal justified – Milk Tank Driver |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Angel v Fonterra Co-operative Group [2006] ERNZ 1080; (2007) 8 NZELC 98,643; (2006) 4 NZELR 274;Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;Rapana v Northland Co-op Dairy Co Ltd [1998] 2 ERNZ 528;W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448 |
| Number of Pages | 12 |
| PDF File Link: | ca 53_10.pdf [pdf 38 KB] |