After months on unpaid leave and driving lessons, one forgotten document ended everything
A concrete truck driver left his licence in the car during a company driving test. It cost him his job - until the Employment Relations Authority stepped in.
From China to the concrete yard
The worker, a Chinese citizen who had driven trucks since 2002, arrived in New Zealand in late 2022 on an accredited employer work visa to drive for LG Home Trading, trading as Ocean Concrete. He had never been overseas before. His English was limited, and he could not read it.
Things went sideways almost immediately.
Fifteen near-misses
Ocean Concrete assigned trainers to bring the worker up to speed on New Zealand roads. The adjustment was steep - different side of the road, unfamiliar signs, a GPS system he struggled with even though it was in Chinese. After nearly three weeks, his trainer concluded he was not yet capable of driving independently and reported safety concerns to the company's director, documenting that he had intervened to prevent what he estimated would have been at least 15 accidents during the training period. He told the Authority he did not want to continue endangering himself.
The worker acknowledged the difficulties. In a January 2023 message, he admitted he had not "see the navigation well," missed a highway exit, and "could not keep up with what was happening around me."
Take leave, or face a formal notice
At a meeting on January 12, 2023, the company's director gave the worker two options: take personal leave while preparing for his New Zealand driver licence test, or receive a formal notice temporarily relieving him of duties - which could affect his visa. The worker chose leave, saying it was better than being dismissed.
From January 13 to March 31, 2023, Ocean Concrete provided him no work and no pay, apart from two days of non-driving tasks.
His licence was in the car park
On March 21, the worker earned his New Zealand driver licence. He messaged it to the company group chat and called to say he was ready.
Four days later, he turned up for the company's internal driving assessment. He did not pass - but not for his driving. The assessor failed him because he had left his licence and logbook in his own car, parked outside the company's premises, rather than bringing them to the assessment. The assessor had asked him to bring the documents. The worker accepted he had not read the message "very thoroughly."
The assessor considered this a basic failure of preparedness and ended the assessment.
On the same day, the assessor took the worker on a concrete delivery job. During the work, the worker made a comment the assessor regarded as disrespectful, indicating he thought the manual barrowing work was only suitable for workers of another ethnicity. The assessor understood the worker was unwilling to do available non-driving tasks.
Too much, too late
On March 30, 2023, Ocean Concrete terminated the worker's employment for serious misconduct and breach of trust and confidence, effective the next day. The termination letter cited the failed internal assessment, the earlier unsafe driving during training, the delay in obtaining a licence, and a missed meeting the worker had forgotten to attend.
The Authority found the dismissal unjustified.
Ocean Concrete had known about the driving concerns since at least mid-January but did not pursue them as disciplinary matters for around two months. Instead, it had granted unpaid leave - hardly a signal that misconduct proceedings were coming. The earlier driving issues, the Authority found, had been "added into the mix" after the fact in a way that was "not justified."
As for the failed internal assessment, the Authority accepted the worker had breached his obligation to carry his licence when driving a company vehicle. But one failed test - where the failure was about documents, not driving ability - did not warrant dismissal without notice. The company had not warned him that a single failed assessment could end his employment. And since it had not been paying him, allowing a second attempt would have cost it nothing.
The circumstances did not fit the serious misconduct categories in the employment agreement or those recognised at law, the Authority found.
What it cost
The Authority ordered Ocean Concrete to pay $4,032 gross in lost wages and $7,200 in compensation for humiliation, loss of dignity, and injury to feelings. Both figures reflected a 10 per cent reduction for the worker's own contribution - his failure to read company materials fully and to present his licence at the assessment.
The worker's separate claim for unpaid wages during the leave period was not upheld. The Authority found he had agreed to the unpaid leave arrangement.
The shell company that wasn't
Ocean Concrete also counterclaimed, arguing the worker had misrepresented his qualifications and experience. During the investigation, it emerged the worker had been the sole shareholder of a Chinese company with registered capital of 5 million yuan - over NZ$1.3 million. He described it as a shell company with no real operations, saying his former boss had asked him to lend his name. He had since transferred the shares to his wife's younger sister.
The Authority found it "difficult to see this as amounting to misrepresentation," noting there was no evidence the worker had actually worked for or received money from the company. The counterclaim was dismissed.
What it means for HR teams
For employers managing migrant workers on sponsored visas, the case draws a hard line: sitting on known performance concerns for months and then bundling them into a dismissal without notice does not pass the fairness test - especially when the employer has been granting unpaid leave instead of signalling disciplinary consequences.
