Employer fell short in justifying approach to dismiss employee: ERA
A former bus driver in Wellington has won his lost wages back after the Employment Relations Authority (ERA) ruled that he was unjustifiably dismissed by his employer in 2021.
John McKenzie was a bus driver employed by Tranzurban Wellington Limited in June 2019 - but was at "higher risk for COVID" when the pandemic spread in 2020.
He presented several medical certificates to Tranzurban, including one that said he would be "unable to return till COVID level one is attained."
From September 8, 2021, and until October 13, 2021, McKenzie was using his annual leave or accrued days to cover his salary. By October 18, he was on leave without pay.
By September 16, McKenzie also informed a Tranzurban employee that he had a serious asthma attack and migraines "brought on by excessive stress, anxiety and panic attacks from poor communication from Tranzurban and no individual solutions for support and lack of empathy."
By September 19, he also informed Tranzurban to not contact him. By September 28, however, the Amalgamated Workers Union (AWUNZ) on behalf of McKenzie told Tranzurban that while he cannot return to work until COVID level one, the bus driver would like to return and suggested several measures to assist his comeback.
Tranzurban, however, pointed out that it had not received a medical certificate from McKenzie since September 2020, adding that his recent stress and anxiety was concerning to the organisation.
The company then required McKenzie to get a medical assessment before he could return.
Medical assessment request
McKenzie presented a certificate in October 19 stating that he could not work at COVID level two or higher, but declined the medical examination because they were "wide ranging and therefore unreasonable."
Tranzurban then requested a Drives Medical Assessment, which McKenzie accomplished and the doctor marked it as a "partial" medical.
As heard by the ERA, only two of the four-page assessment was submitted, and Tranzurban said the missing pages included a section about mental disorders that it needed. The company then decided not to allow McKenzie to return, despite the doctor later saying that he was "medically fit to drive commercially."
Tranzurban was unsatisfied and asked McKenzie to take a second examination by a company doctor as stipulated in their employment agreement.
The second exam concluded that there was "no underlying health condition" that affected McKenzie from returning to work, but it contained "caveats that concerned Tranzurban."
"I was not able to gain sufficient rapport with him to gently explore whether there were any particular issues, either medical or psychological, that may be impacting on his fitness to work," the assessment said.
Tranzurban then "gave up at this point and dismissed McKenzie," stating he was unable to prove that he could safely return, a move that McKenzie challenged at the ERA.
ERA's decision
The ERA ruled in favour of McKenzie, deciding that he was unjustifiably dismissed from his role.
"I have found Tranzurban has fallen short in justifying its approach and its ultimate decision to dismiss, there is nothing to support such a claim," the ERA said in its ruling.
Tranzurban was then ordered to pay McKenzie 42 weeks’ worth of lost wages, minus $18,948.15 that he earned when he worked as a part-time Uber driver from December 2021.
The ERA also ordered the employer to pay McKenzie additional $7,200 as compensation for humiliation, loss of dignity, and injury to feelings.
