| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 167/10 |
| Hearing date | 28 Jul 2010 |
| Determination date | 27 August 2010 |
| Member | P Cheyne |
| Representation | J O'Neil ; L Penno |
| Location | Dunedin |
| Parties | Walters v Tulloch Transport Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant dismissed following investigation into complaint about applicant’s driving - Authority found applicant deliberately lied about post dismissal employment in support of claim of reimbursement of lost wages - Found lie meant could not be regarded as reliable witness when assessing conflicts of evidence - Respondent received two complaints about applicant’s driving - Parties met to discuss complaints - Applicant given memo stating respondent would not take matter further but would be giving applicant driving assessment outside scheduled sequence - Applicant received traffic infringement notice for speeding - Incident leading to dismissal was applicant’s overtaking of vehicle on wrong side of road crossing yellow lines - One occupant of vehicle was Senior Sergeant of Commercial Vehicle Investigation Unit (“W”) who liaised with respondent as part of his work - W complained to respondent - Applicant called to meeting to hear explanation - Applicant informed of allegation, given copy of W’s written complaint, told infringement notice would be included in investigation, dismissal possible outcome, and entitled to support person or representative - Applicant claimed did not see yellow lines and his vehicles’ speedometer must read slow - Respondent found speedometer accurate - Respondent concluded applicant deliberately made illegal unsafe passing manoeuvre by crossing yellow line incurring complaint from public - Concluded applicant had failed to change driving behaviour and drove in manner causing loss of trust and confidence - Applicant summarily dismissed - Applicant claimed W wrongly asserted were yellow no passing lines throughout corner when was only for length of 21 metres - Found applicant did not raise issue prior to dismissal - Found applicant’s other explanation that did see lines but crossed them anyway not likely to have given respondent confidence in applicant’s driving ability - Found conclusions respondent reached would have been reached by any fair and reasonable employer - Found respondent’s conclusion applicant not changed driving behaviour following memo and driving assessment reasonable - Applicant claimed respondent closed mind to applicant’s explanations and effectively pre-determined dismissal decision - Respondent’s evidence preferred that considered explanations but did not accept them - Authority found nothing unfair or unreasonable in respondent’s actions - Applicant claimed because not given warning for previous complaints about driving respondent condoned him receiving complaints from public about driving - Claimed respondent had to warn him that in future such conduct would not be tolerated - Found no evidence of respondent tolerating driving behaviour such as applicant’s - Found in any event memo made clear respondent expected would not receive further complaints about applicant's driving - Found no merit in applicant’s claim of inconsistent treatment - Applicant’s disparity of treatment claim rejected - Applicant claimed respondent reopened issues dealt with in memo and treated it as disciplinary warning when was not - Found respondent did misconstrue memo - However, found error immaterial as did not affect justification for dismissal - Applicant claimed conduct misconduct warranting warning rather than serious misconduct warranting dismissal under employment agreement - Found point did not address way respondent saw matter - Found applicant dismissed because of illegal, unsafe, and inconsiderate driving leading respondent to lose trust and confidence that applicant could perform duties to respondent’s standards in future - Found fair and reasonable employer would have reached same conclusion - Dismissal justified - Driver |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | NZ (with exceptions) Food Processing etc IUOW v Unilever NZ Ltd [1990] 1 NZILR 35 ; (1990) 3 NZELC 97,567 ; (1990) ERNZ Sel Cas 582;Otumarama Private Hospital Ltd v Bell and Anor [1995] 2 ERNZ 491 |
| Number of Pages | 12 |
| PDF File Link: | ca 167_10.pdf [pdf 42 KB] |