Legal expert Danielle Beston explains why having a safe driving policy in place is vital for any transport operator.

Employers have a duty of care to provide a safe working environment for their employees that extends to when employees are required to drive as part of their job. That is why it is important for transport operators to have a robust, effective and efficient safe driving policy in place that will keep workers safe while also saving businesses a lot of stress and money. But what happens when there is a breach of the terms of a company’s safe driving policy? Is this a ground for dismissal? In QDA v EKD [2021] NZEmpC 139, the Employment Court was asked to determine this very question and you might be surprised to learn the answer.

The facts
EKD (‘Mr D’) was a waste collection vehicle driver for QDA (‘the company’). Mr D had a history of minor driving incidents and faced complaints from colleagues about his ‘unconventional’ communication style. After receiving a final warning for a driving issue, Mr D caused minor damage while parking a truck when he had reversed his vehicle into a sign secured to a barrier wall.

Under QDA’s Safe Driving Policy each driver was to:

• “Immediately report any accident or incident that they are involved in to their direct manager, regardless of the perceived/actual damage costs (if any) or severity of the incident, which
• Resulted in any [QDA] vehicle and/or plant and equipment under their control being damaged;
• Resulted in any other property damage, altercation or injury; or
• Resulted in a near miss.” Mr D attempted to notify the company straight away but was unable to do so and instead, he reported the incident the next day.

The dispute
Following a brief investigation, Mr D was dismissed on notice for the driving incident and for failing to report it promptly. Mr D alleged that it was an unjustifiable dismissal. The Employment Relations Authority held that Mr D was unjustifiably dismissed by QDA and awarded $10,000 of compensatory damages. The company appealed against this decision to the Employment Court.

Was dismissal justified?
The Court is required to examine the issue of justification objectively. Section 103A of the Employment Relations Act 2000 sets out the test for determining whether the decision to terminate a person’s employment was a justified response. The two factors that must be considered are whether the employer acted fairly and reasonably in the circumstances, and if there were any defects in the procedure followed, whether these were minor and did not result in the employee being treated unfairly.

In applying this test the Court must consider—
(a) whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and
(b) whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and
(c) whether the employer gave the employee a reasonable opportunity to respond to the employer’s concerns before dismissing or taking action against the employee; and
(d) whether the employer genuinely considered the employee’s explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.

In addition to this, the court may consider any other factors it thinks are appropriate.

The judge’s reasoning
The Court held that a full and proper investigation should have been conducted, including interviewing all relevant witnesses. That did not occur in this case. The incident itself was deemed minor and a fault in the mirror contributed to the incident. In addition to this, Mr D’s explanations for the delay in reporting the incident were not considered adequately. A range of procedural failures were also identified in the steps which QDA took when dismissing Mr D. In conclusion, the court found that the dismissal was substantively unjustified. Compensation of $10,000 was awarded but this was reduced by 10% for Mr D’s contributory conduct. The final compensatory damages awarded to Mr D was $9071.56.