On the face of it.....

It seemed a good case but.....

In a recent determination from the Employment Relations Authority an employer’s decision to dismiss an employee was not justifiable – to the tune of $8,635.

The employee was engaged as a trainee driver by an airport shuttle company from 12 March 2013 until he was dismissed on 21 May 2013.

The employer’s reasons for the dismissal were:

1.         That the employee had driven a vehicle at speeds of 25 kph or more in excess of the legal limit as shown by the GPS data for the vehicle.

2.         That he had failed to pick up a scheduled passenger, had upset two customers and had brought the company into disrepute.

3.         That the dismissal was within the 90 day trial period and the company could therefore dismiss without a personal grievance being lodged.

4.         That he was employed on a ‘casual as required’ basis, so the company had no obligation to offer further work.

5.         That an investigation and meeting took place.

6.         That he was legitimately suspended while an investigation was undertaken.

7.         That he was justifiably dismissed in light of serious safety issues related to his driving.

On the face of it a very compelling argument for an employer to dismiss, so what went wrong?

The employee obviously didn’t agree and took a Personal Grievance to the Employment Authority – which found that:

 

1.        The employer was not so concerned about the speeding that the employee was not stopped from driving on subsequent days. The employer did not check to see if there was other GPS data for any other days that the employee drove.  The ERA also took into consideration that the employer had received other traffic infringement notices for speeding by other drivers, but none of them had been dismissed.

 

2.        The employer replied to a customer complaint without investigation and blamed the employee. Later information supplied by the customer and the employee suggested there were other aspects that should have been considered before blaming the employee. The customer complaints were not made available to the employee prior to the meeting on 24 May. 

 

3.         Neither the job offer of 11 March nor the employment agreement signed on 13 March met the statutory requirements for excluding grievance rights under the 90 day trial period. The Authority also noted that the employee had worked the day before the employment agreement was signed, therefore being an existing employee and the trial period provision could not apply.

 

4.        The employment agreement stated the employment “as casual’.  Drivers had to confirm their availability at the beginning of the week, therefore  ‘rather than truly casual, the expectation of availability and acceptance meant the actual nature of the employment was ongoing ….. there were legitimate expectations of further work’ being provided and accepted.

 

5.        The employer did not conduct a full and fair investigation of its concerns.  The employee was not advised that the meeting on 14 May could result in disciplinary action being taken or of the possibility of dismissal.  The employee was not provided with a copy of the GPS data prior to the meeting on 14 May.  The employer agreed to have the GPS calibrated to check the reliability of the data, however he dismissed the employee prior to these results being made available.

 

6.        There was no provision in the employment agreement for suspension.  The employee was sent an email asking him to attend a meeting a week later and was not offered work during this time.

 

7.        That written notice stating that he would not be put ‘on the drivers’ roster’ also indicated that employment was not of a casual nature.

The Authority concluded that the employer’s actions in not undertaking a full and fair investigation resulted in the employee being treated unfairly.

The remedies awarded to the employee (reduced by 15% for contributory actions) were:

(i)                  $872 for lost wages for the period when the employee was unjustifiably suspended

(ii)                $4,363 for lost wages as a result of the unjustified dismissal

(iii)               $3,400 in compensation for humiliation, loss of dignity and injury to feelings.

This case illustrates how important it is to investigate thoroughly, fairly and without bias when disciplinary action may result. It also shows that the employment agreement was not correctly written and had conflicting clauses.  Always take good advice before taking any action, and have your employment agreements professionally prepared.  Battersby HR Consulting can help you.

Battersby HR Consulting, Phone Paddy 09 838 6338 ; paddy@battersbyhr.com

14 September 2014
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