Employee who crashed while under the influence of drugs loses his appeal…

A train driver was dismissed after he failed a drug and alcohol test following crashing his train. The test, proved positive for cannabis. Most employers will not have train drivers on their staff but the tests for dismissal will apply to all employees in safety critical roles.

The driver commenced proceedings in the Employment Relations Authority claiming that his dismissal was unjustified. The ERA rejected his claims. The driver appealed the decision to the Employment Court.  

In a recent judgment, the Employment Court has upheld the ERAs decision. The Court held that KiwiRail was entitled to find that the employee’s drug use and his subsequent operation of the train amounted to serious misconduct.

The employee was employed under a multi-employer collective agreement. The agreement contained a Drug and Alcohol Policy which records that rehabilitation is the preferred outcome for employees who fail a random drug test. The policy stated that both KiwiRail and the Union recognise that rehabilitation may not be appropriate in all cases.

The Court found that a fair and reasonable employer could have concluded in this case that rehabilitation was inappropriate. KiwiRail gave consideration as to why the employee should be given another chance but decided that the employee was in a ‘safety critical role’, and had full knowledge of the Drug and Alcohol Policy. From the outset, the employer made it clear to the employee that he had broken their trust and confidence, and that the health and wellness of their passengers and crew was a top priority. KiwiRail's decision to dismiss the employee was therefore justified.

Alan Knowsley
Employment Lawyer Wellington

Employers must follow the correct process when making an employee redundant…

An employee working for a transport company was made redundant after the employee’s run became no longer viable.

The Employment Relations Authority held that the redundancy was genuine, despite the employer hiring five others following the employee’s dismissal. The nature of their roles were inconsistent with the employee’s job description, and others filled vacancies which arose after the employee was dismissed.

The ERA found that the employer’s dismissal process was flawed. An employer is required, before making an employee redundant, to raise its concerns with the employee, and must give them the opportunity to respond. The employer must then consider the response with an open mind. Instead, the employer dismissed the employee without any prior warning, and provided no supporting details for the dismissal. The ERA noted that the employee’s ability to respond was curtailed, and the receipt of a dismissal letter at the end of the meeting indicated that a decision had effectively been made. The employer also failed to look into other possible alternatives to the employee’s dismissal.

The ERA stated that these deficiencies in the dismissal process could not be excused by reason of the resources available to the employer as the employer had received professional advice about how to address the situation.

The ERA held that the employee was unable to recover lost wages as the redundancy was substantively justifiable. Nevertheless, the ERA awarded the employee $5,000 compensation for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Employee forced to repay over $11,800 after being overpaid by her employer…

An employer accidentally overpaid his employee over $11,800 when his accountant paid the employee an hourly rate instead of her commission.  After a long delay, the parties met to address the issue. Thereafter the employer offered the employee a new contract which included proposals for the repayment of the outstanding amount. The employee then resigned.

The Employment Relations Authority upheld the employee’s personal grievance claim for unjustified constructive dismissal. The ERA found that the employer had unfairly and unlawfully withheld the employee’s commission so as to facilitate repayment. 

The employer did so knowing that the employee was struggling financially, and did not agree to the change. The employer also failed to deal with the issue within a reasonable timeframe, and this created mistrust. 

The ERA noted that the employee’s resignation was thus reasonably foreseeable, especially after the employer sought to change the fundamental nature of her employment agreement by reducing her regular commission, and by changing her status to a commission sales person.

The ERA awarded the employee three months commission, and $10,000 compensation for loss of dignity and injury to feelings. The ERA held that as her award was in excess of the sum owing it would be equitable, given the circumstances, for her to repay the employer the full amount of money she owed.

Employees must be vigilant when receiving their pay as they may be forced to repay large sums of money, even when they are not responsible for, or aware of, any errors!

Alan Knowsley

Employment Lawyer Wellington

Employee accused of Health & Safety breach reinstated on an interim basis…

An employee was dismissed after he allegedly placed his hand into an operating machine to clear a blockage. The employer argued that his actions breached the company’s health and safety requirements.

The Employment Relations Authority ordered that the employee be reinstated on an interim basis pending a hearing. Several factors stood out:

The employee denied putting his hand in the machine.

He had worked there for 18 years without a prior incident.

Clearing a blockage the way alleged had previously been approved.

Documentation was unclear on the correct procedure.

If his version was believed, reinstatement was likely, and

The employee’s financial state made waiting for a substantive hearing (and damages) impractical.

The ERA ordered that the employee be reinstated on the condition that he adheres to any lawful and reasonable instruction given by his employer, especially on how to clear any blockages.

Employers must have clear policies and documentation on safety procedures and proof that these have been brought to the attention of the employee, if they want to be able to rely on them.

Alan Knowsley
Employment Lawyer Wellington

Employee’s fall costs employer and company in control of site…

A contractor has fallen three metres after the grating he was standing on gave way. The section of grating was missing some clips and had not been checked before he began work.

The District Court has sentenced two companies under the Health and Safety in Employment Act for failing to take all practicable steps to ensure a contractor was not harmed doing work he was engaged to perform.

Both companies have been fined $30,000 each. The company who was responsible for the site, where the incident occurred, was ordered to pay an additional $10,000 in emotional harm and reparation. The contractor’s employer avoided this payment as the company had offered him significant support after his fall.

Companies must identify and manage risks at work sites before workers are put in harm’s way. A full hazard assessment of the site would have identified the risk and fixing the grate would have eliminated the hazard.

Alan Knowsley

Employment Lawyer Wellington