| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 48 |
| Hearing date | 15 Mar 2011 |
| Determination date | 28 March 2011 |
| Member | P R Stapp |
| Representation | K Macneil ; J Churchill, B Churchill |
| Location | New Plymouth |
| Parties | Tohu v Scrap Metal Exporters Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant dismissed for failing to contact respondent and provide sufficient reasons for overnight stay and delayed return to base following day - Applicant drove truck from base to destination - Applicant required to unload vehicle at two locations - At first location applicant advised aunt had had stroke and been hospitalised - Applicant completed unloading at second place, made arrangements to leave truck there and went to visit aunt - Applicant stayed overnight at destination - Applicant attempted to contact respondent but did not have work cell phone or contact details for respondent - Applicant attempted to arrange for wife to contact respondent but attempts unsuccessful - Respondent’s yard manager (“B”) became concerned when applicant did not return to base and had not heard from him - B contacted Police who were able to contact applicant and confirm for B that everything was fine - Applicant drove back to base next day - Applicant’s return delayed due to accident on road - Applicant claimed when returned to base attempted to explain what had happened but B talked over him and told him employment was terminated - Following day B confirmed did not want applicant driving respondent’s trucks - Applicant raised personal grievance - Dispute between parties as to what happened when applicant returned to base - Applicant’s evidence preferred - Authority found fair and reasonable employer would not have dismissed applicant in all circumstances - Applicant’s evidence that aunt had stroke and went to visit her accepted - Found applicant had made attempts to contact respondent - Found applicant to be given benefit of doubt that secured truck as respondent did not make inquiries - Found further delay in return to base occasioned by circumstances outside applicant’s control - Found applicant attempted to explain actions but was not listened to - Found respondent did not carry out investigation into incident - Found respondent had no disciplinary code, written disciplinary procedures, and was no written employment agreement - Found applicant given no opportunity to get representation or assistance - Found applicant not advised dismissal a possibility until dismissed - Dismissal unjustified - Remedies - Found 10 percent contributory conduct - Applicant sought 13 months reimbursement of lost wages - Authority satisfied applicant attempted to mitigate losses - However, found given short length of employment no guarantee applicant would have worked for respondent for all of period claimed - Found three months reimbursement of lost wages, subject to reduction for contribution, appropriate - Authority accepted dismissal had impact on applicant - Applicant claimed felt degraded and hurt by dismissal especially as dismissed in front of other people - $8,000 compensation, to be reduced for contribution appropriate - PENALTIES – Applicant’s claims for penalties dismissed - COSTS - Length of investigation meeting not specified - Respondent to pay applicant $2,800 contribution to costs plus service fee and filing fee - Truck driver |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($9,945)(reduced for contributory conduct) ; Compensation for humiliation etc ($8,000 reduced to $7,200) ; Application dismissed (penalties) ; Costs in favour of applicant ($2,800) ; Disbursements in favour of applicant ($140)(Service fees)($71.56)(Filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s134(5) |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Wellington_48.pdf [pdf 38 KB] |