A Wellington bus driver sacked amid claims he was at higher risk from Covid has failed to get his job back on an interim basis. Photo / Mark Mitchell
A Wellington bus driver sacked amid claims he was at higher risk from Covid has failed to get his job back on an interim basis. Photo / Mark Mitchell
A bus driver sacked amid his claims he was at higher risk of Covid has failed to get his job back on an interim basis, partly out of concern for public safety.
John McKenzie was dismissed by Tranzurban Wellington Ltd in July this year, having told the company in 2020he was unable to work at Covid level 2 or higher.
He provided medical certificates to back his claims he was at a higher than average risk from the virus due to various health conditions.
McKenzie challenged the dismissal and lodged multiple claims of unjustified disadvantage and an allegation Tranzurban had breached the duty of good faith.
Along with other remedies, McKenzie sought reinstatement and asked that it be granted on an interim basis pending a substantive consideration of his claims.
The Employment Relations Authority said in a decision released last week that McKenzie had also raised associated health and safety concerns and complained about excessive stress generated as a result of his belief no one was taking his concerns seriously.
Tranzurban argued its actions were justified and opposed the application for interim reinstatement.
Its submission relied on the fact it had obligations not only to McKenzie, but to his colleagues and, more importantly, the company's clientele to provide a safe service.
McKenzie started working for the company in June 2019.
Covid struck in early 2020, which was when he raised his concerns. This in turn prompted Tranzurban to consider if he could safely perform his role.
The company asked him to undergo a medical assessment, under a provision contained in his employment agreement.
A bus driver who challenged his dismissal has failed to get his job back on an interim basis, partly because of concerns over public safety. Photo / 123RF
Tranzurban initially asked for an extensive analysis to which McKenzie objected.
In the end the company agreed a medical assessment of the type required for the maintenance of a passenger endorsement on a driver's licence was sufficient, and which McKenzie got.
Tranzurban's concerns were re-ignited when subsequent matters arose, and it again sought a more comprehensive assessment.
McKenzie was again reluctant to comply with the request.
An assessment prepared by an occupational physician in June this year concluded there was no underlying health condition that might affect McKenzie attending work or performing his job.
Tranzurban felt the report contained some concerning caveats and various unanswered questions.
The physician's evidence to the ERA was that he was unable to explore the issues raised by Tranzurban in its referral because of McKenzie's response, or lack of.
The doctor commented that McKenzie had answered most of his questions by saying they were not relevant.
The ERA said that essentially Tranzurban gave up at this point and dismissed McKenzie on the basis he had been unable to satisfy the employer that he could safely return and that, as a result, termination was permissible under the employment agreement.
The authority ultimately concluded McKenzie had an arguable case for both a finding of unjustified dismissal and permanent reinstatement.
In the context of alternative remedy to job reinstatement, which McKenzie had not originally addressed, the ERA also noted he had been on leave without pay since October 2021, due to earlier suspensions and activities.
Tranzurban reiterated the Act allowed for a range of financial remedies and was in a position to provide these if ordered to do so.
ERA member Michael Loftus said that while the case for permanent reinstatement was arguable, the evidence to date suggested there was no guarantee it would occur should McKenzie successfully pursue his claim.
The authority said Tranzurban's concerns were yet to be alleviated and concluded that the final medical report did leave questions as to its completeness and whether or not McKenzie was truly capable of returning.
"Even if he is, it provides sufficient reason for Tranzurban's concerns to remain. Its content also means that I am less than completely satisfied an order for reinstatement would be a safe one," Loftus said.
That in turn meant there must be a question over whether Tranzurban could safely honour its various obligations should McKenzie be reinstated on an interim basis.
"In these circumstances I conclude the balance of convenience must, at this stage, strongly favour Tranzurban."
Loftus concluded it would be inappropriate to reinstate McKenzie on an interim basis, and therefore his application to be reinstated on that basis, failed.
An investigation of McKenzie's substantive claim would now be scheduled.
