Employer says safety violations justify termination
The Employment Relations Authority (ERA) recently dealt with a personal grievance claim involving a truck driver who was summarily dismissed for serious misconduct after being caught using his mobile phone while driving on multiple occasions.
The worker argued that his dismissal was unjustified despite acknowledging his phone use while driving, claiming his employer failed to follow proper disciplinary procedures and breached its own policies. He sought reinstatement to his driving position and compensation for lost wages and hurt feelings.
The case raised important questions about procedural fairness in disciplinary processes, particularly the right to representation during meetings that could result in dismissal.
The worker contended that safety breaches did not warrant summary dismissal without proper warnings, while the employer argued it had health and safety obligations that justified immediate termination.
Safety violations and workplace policies
The worker was employed as a full-time truck driver on 7 March 2024, earning $32 per hour for up to 55 hours of work per week.
The transport company employed more than 700 staff and managed 350 specialist vehicles, with company policy strictly prohibiting driver use of mobile phones while driving.
On 2 August 2024, two separate managers witnessed the worker using his mobile phone while driving. The fleet maintenance manager saw him using his phone while driving his Class 5 truck along a public road, while the fleet logistics manager saw him using his phone while driving around the depot.
Both managers spoke to the worker about the incidents, with the site manager warning him “not to do it again unless he was using a hands-free Bluetooth device.”
On 27 August 2024, the company received video footage from dashboard cameras showing the worker “propping his mobile phone up against the onboard camera on the dashboard of his truck and using it while he was driving on the motorway.”
The worker admitted his phone use and promised it would not happen again during earlier informal conversations.
Disciplinary process and procedural failures
On 30 August 2024, the site manager gave the worker a letter inviting him to a disciplinary meeting on 3 September 2024.
However, the letter failed to advise him that he could bring a support person to the meeting, despite stating that dismissal was a potential outcome.
The disciplinary meeting proceeded at 6:30 am with the worker admitting he used his mobile phone while driving and acknowledging “it was his mistake.”
After a brief adjournment, the site manager proposed terminating the worker’s employment without notice for serious misconduct.
The worker “requested one more chance and promised it would not happen again,” but the manager told him “he had already been spoken to about it several times and it should not have happened again.”
On 4 September 2024, the company confirmed the worker’s dismissal without notice.
Procedural fairness and representation rights
The worker argued that the company’s disciplinary process failed to comply with its own performance and disciplinary policy.
The company’s policy required that employees be informed “of their right to representation, union or other support person” and be provided “adequate time to obtain representation.”
The HR manager acknowledged that this advice “should have been included in the invitation to a disciplinary meeting letter.”
The site manager admitted he was not aware the letter did not mention the support person's right and said he would have postponed the meeting if he had known.
The worker argued he “did not seriously contemplate that dismissal was a possible outcome of the meeting” and that the lack of notification gave him “a false sense of security regarding the meeting.”
The ERA found this was “a serious and substantial breach of process, and not one that can be referred to as a minor procedural defect.”
The Authority noted this was particularly significant given that the company was “a reasonably sized employer with its own expertise in human resources.”
ERA findings on dismissal justification
The ERA found that while the company could reasonably conclude the worker’s actions constituted serious misconduct, the procedural failures made the dismissal unjustified.
The Authority noted that if the worker “had a proper opportunity in the disciplinary meeting to raise” his defences about needing to use the phone for work-related calls and faulty Bluetooth equipment, the company could have investigated these claims.
The ERA concluded that “this lapse in [the company’s] procedure and breach of its policy had damaging consequences for [the worker]. In not having a support person he was deprived of his right for natural justice.” The Authority found the company’s “evidence fails to demonstrate how the procedural fairness requirements were met.”
The ERA determined the worker “was unjustifiably dismissed” despite acknowledging the company’s legitimate health and safety concerns and the seriousness of the worker’s conduct.
Remedies and reinstatement considerations
The worker sought permanent reinstatement, arguing it was reasonable given the company’s size and need for drivers. However, the ERA declined to order reinstatement, finding the company’s health and safety concerns were not exaggerated.
The Authority noted the video footage showed the worker “interacting with his phone for at least 30 seconds” while “driving a 40-tonne vehicle on the Auckland motorway at rush hour.”
The ERA found the worker “has failed to provide the required level of trust and confidence to allow him to drive” for the company.
The Authority awarded the worker two months’ salary for lost wages and $12,000 compensation for hurt, humiliation and injury to feelings.
However, the compensation was reduced by 50 percent to $6,000 due to the worker’s contributory conduct, with the Authority finding his “actions in relation to his driving contributed to the situation giving rise to his personal grievance.”
The ERA declined to impose penalties, finding the procedural failures were inadvertent rather than deliberate.
