A truck driver who was pepper sprayed for resisting arrest by police during a roadside stop was found to be unfairly sacked by the Employment Relations Authority because police sent “prejudicial” information to his employer.
According to NZME, PTS Logistics sacked truck driver Gavin Bailey in August 2011 after he had worked for the company for more than four months.
Bailey told the ERA that PTS Logistics had made a number of procedural errors before his dismissal and that the road side flare-up with a police officer prior to his sacking was unrelated to his job.
However, PTS argued that his dismissal was justified.
Bailey was stopped by police in Taupo on August 6, 2011 for a routine roadside check. A disagreement erupted when a constable asked him to produce a logbook, and Bailey drove off.
Police officer Trevor Pierce pursued him before he stopped, left the truck and approached the officer, who initially stayed in his car and radioed for help, believing that Bailey was about to assault him.
The ERA says Bailey returned to the cab and was shortly after pepper-sprayed for resisting arrest.
After the event had concluded, Bailey contacted a PTS manager to advise of the incident.
Some days later PTS general manager Denis Wan contacted police and asked for an incident outline. Police sent him a summary of facts and caption summary for a charge of failing to remain stopped.
According to NZME, the caption summary was supposed to be made public once Bailey had pled guilty or not guilty to the charge.
Wan drafted a letter on August 12 inviting Bailey to a disciplinary meeting, which was held three days later. The driver relayed his story before Wan provided a copy of the summary of facts from Police.
Bailey conveyed his displeasure that PTS had the summary when he did not, but he broadly accepted the police version of events and agreed he “was wild” at the time of the roadside incident.
Wan says he was concerned that Bailey had “lost control” and that his behaviour could potentially bring the company into disrepute.
ERA member Michele Ryan accepted that Bailey felt “ambushed” when the police documents were produced by his employer.
“…Bailey was effectively called to answer prejudicial information without any notice the issue was of concern, or sufficient time to properly consider or form his response,” says Ryan.
Bailey was fired some 45 minutes after the meeting commenced.
He successfully defended the charge of failing to remain stopped nine months later the the Taupo District Court.
The ERA says Wan “genuinely endeavoured to conduct a fair process” but PTS failed to adequately clarify its concerns to Bailey before sacking him.
Bailey sought reimbursement of 16 weeks wages but this was denied as didn’t provide evidence to prove he was actually applying for new jobs after his dismissal.
Ryan was going to ward Bailey $5000 for distress, humiliation and hurt feelings but said his behaviour contributed to the situation that triggered his dismissal, so the award was cut to $1000.
Ryan also says that police had already apologised for releasing the caption summary to Bailey’s employer.
