Arborist awarded $12,000 after drunken joyride in work truck

The arborist was awarded $12,000 after the ERA found the dismissal process was unfair. Photo / Getty

An arborist who was part of a team caught by police joyriding in the work truck after a night of drinking has been awarded $12,000 for unjustified dismissal.

The Employment Relations Authority found Treescape Ltd did not follow the correct process when it dismissed arborist Stephen Menzies after the Waiheke Island incident.

Menzies was part of a Treescape team sent to the Hauraki Gulf Island to trim trees in April 2019.

The ERA heard Menzies and the team had a few drinks at their motel with some other workers they had met.

By 11.30 pm the group had become bored and decided to take the work truck and "go for a joyride."

Menzies and his supervisor - referred to by the ERA as "Mr X" - took the work ute.

Mr X drove with Menzies in the passenger seat.

Around 30 minutes into the drive the Police pulled the ute over. A breath alcohol test
was performed on Mr X and he failed. When Menzies offered to drive, the Police
undertook a test on him too. He also failed.

The Police subsequently drove the vehicle and the two men back to their motel.

The next morning Mr X phoned his manager and told him he had been drinking the previous night and had been stopped by the Police in the work ute. He assured the manager he was fit to work that day.

All three men duly filed incident forms.

The incident forms confirmed that Menzies and Mr X had been drinking, they had decided to go for a drive to the beach and the Police had pulled them over.

In his report Menzies said he had made a "stupid decision" and he had not realised they had drunk so much as to be over the limit.

On May 13 Menzies was told there would be an investigation into the incident.

Menzies continued to work and to drive the work ute and a work truck allocated to him as he normally would until the disciplinary process started.

At the commencement of the first meeting, Menzies was provided with copies of
documentation relied upon by Treescape.

He was told the purpose of the meeting was to discuss the use of the Treescape ute after work hours and also the fact he was a passenger in the ute pulled over by police and that he and Mr X had failed a Police roadside breath test.

But during the meeting, the allegations were expanded to include personal
use of the work vehicle. Then, half way through the meeting an allegation of breach of the
Fleet and Asset Management Guidelines was raised.

Later, another allegation; that Menzies had "risked his health or safety, and that of Mr X and members of the public" was brought up.

The ERA said there was no opportunity for Menzies to consider the additional allegations, or to review the material provided before he was asked to respond.

The ERA said this was unfair and meant Menzies did not understand the allegations or appreciate the seriousness of the allegations that he faced.

The ERA found the disciplinary invitation letter did not disclose Treescape's primary issues of concern nor did it provide copies of the information that Treescape relied upon.

It also failed to advise Menzies of the allegation that his conduct was being viewed as
serious misconduct.

The ERA said this information could have been made available to Menzies
prior to the meeting so that he had a proper opportunity to take advice and respond.

Jenni-Maree Trotman of the ERA said Treescape's "procedural failings were not minor" and meant Menzies was treated unfairly.

"Had Mr Menzies been on notice of the allegations against him ahead of the meeting then this may have altered the responses that he provided and the outcome," she said.

Treescape Ltd was ordered to pay Menzies $2046.80 for lost wages and $10,000 compensation.