Unjustified dismissal – necessary process – Employment Relations Authority, ss 124 and 174E
Wolak v Boss Transport Limited  NZERA 349.
Beth Wolak claimed her dismissal for serious misconduct on 22 December 2021 was unjustified. She sought a finding of unjustified dismissal; lost wages; compensation for humiliation, loss of dignity, injury to feelings; and costs.
Wolak had been driving a charter bus with school children on board when she became concerned about the children becoming unruly and moving around the bus. She drove past a police car and signalled them. The police boarded the bus and spoke to the children.
Wolak immediately reported the incident to Boss Transport and was told to complete an incident report, which she did. At the same time, the company received a complaint from the school about the police boarding the bus. Wolak was not told of this.
Unbeknown to her, Boss Transport management met and discussed the complaint and decided to dismiss Wolak immediately. She received a letter that referred to a complaint being made but did not disclose the nature of the complaint. The letter noted that Wolak’s actions amounted to serious misconduct and concluded by advising her the company had no other option but to terminate her employment.
The Employment Relations Authority (ERA) said it was difficult to see how Wolak’s actions could have been construed as serious misconduct as one would have thought that asking for police assistance in the circumstances was a sensible way of de-escalating what Wolak saw as a dangerous situation.
The ERA found the company’s decision to dismiss Wolak in the manner was “entirely lacking” in procedural fairness. The employer did not investigate the allegation and did not involve Wolak in the process. Nor did the company ask Wolak for an explanation about what had occurred.
Instead, it dismissed her by way of a letter without her even being aware that a complaint had been made. Therefore, the dismissal was unjustified.
Applicable principles: what constituted serious misconduct in the circumstances – whether Boss’ investigation process was what a fair and reasonable employer would have followed – was Wolak’s dismissal unjustified? – whether Wolak contributed in any way to the situation that gave rise to her dismissal
Held: Boss Transport was ordered to pay $4,940.00 for lost wages and $15,000 for humiliation, injury to feelings, and loss of dignity.
Jasmine Jackson is an Auckland criminal defence barrister and a member of the ADLS Parole Law committee.