KEY POINTS:
A bus driver who was involved in a fatal accident when her bus and a car collided has won her claim for unjustified dismissal.
Lynette McLachlan drove buses for Hayward Coachlines (HCL) between March 2007 and February 2008, taking tours out of Auckland.
On February 16 last year while driving a tour party of Korean tourists back to Auckland, the bus driven by Ms McLachlan collided with an oncoming car near Kerepehi on the Hauraki Plains. The young male driver of the car was killed.
Ms McLachlan claimed she was unjustifiably dismissed by HCL several days after the accident.
She sought remedies of lost wages, holiday pay, compensation and costs with the Employment Relations Authority.
The ERA said it considered whether Ms McLachlan was a permanent employee or casual.
The ERA found that Ms McLachlan was indeed an employee of HCL although she did not have a written employment agreement. Payslips showing her PAYE deductions described her as an employee and her occupation as a driver.
Although her days of work varied according to the number of tour party bookings HCL had for the bus she drove, this did not make her a casual employee.
Evidence presented to the ERA showed that how HCL dealt with Ms McLachlan following the accident was not what a fair and reasonable employer would have done in all the circumstances at the time.
HCL also had no health and safety plans or procedures in place to deal with the physical and emotional needs of a driver involved in an accident.
As only minimal steps were taken to care for Ms McLachlan after the accident, the ERA ruled she was also unjustifiably disadvantaged although she did not raise this claim.
It also found that Ms McLachlan's dismissal was unjustified.
HCL made no proper attempts to consult Ms McLachlan about her job or discuss alternatives with her and procedural flaws amounted to an unjustified dismissal.
Ms McLachlan said she had suffered distress, including difficulty sleeping and panic attacks.
The ERA ordered HCL to pay Ms McLachlan:
* $5000 for humiliation, loss of dignity and injury to feelings;
* $1023.35 in holiday pay;
* $500 as penalty for not paying all her holiday pay and not providing wage records when requested; and
* $2070 costs.
- NZPA
