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Truck Driver With Only 4 Months Service Awarded Over $60,000

Published 10 Jun 2013

The recent decision of Harrington v Thunderbird One Ltd [2013] NZERA Christchurch 68 gave damages of $63,243 made up of $38,243 lost wages and $25,000.00 for humiliation, loss of dignity and injury to feelings. This is on the basis that the Employee was unjustifiably disadvantaged, unjustifiably dismissed, suffered gender based discrimination and sexually harassed.

Ms Harrington worked for four months as a truck driver based in Queenstown for Thunderbird One Limited, a company operating a Mainfreight franchise. The Employer did not attend the Employment Relations Authority hearing.

Ms Harrington claimed:

(1)         Unjustifiable disadvantage for: 

                (a)         an unjustified warning for using a vehicle when she couldn’t have;

                (b)         working hours which exceeded the statutory maximum for drivers; and

                (c)         unilateral (without consultation) alteration of duties and place of employment.

(2)         Sexual harassment for two incidents which included inappropriate touching;

(3)         Discrimination where she, as a female, was not made welcome at Thunderbird One Ltd;

(4)         Unjustified dismissal because the company illustrated a course of conduct and failures which 
             would, ultimately, and obviously, lead to resignation.

On one particular occasion, Ms Harrington was asked to manhandle a load on a truck. Two days later after suffering from pain, she sought assistance from her manager and this led to derision and laughter from other Employees. The manager advised Ms Harrington that she would not be permitted to call an ambulance and to do so would result in disciplinary action. Ms Harrington’s father took her to the hospital where she remained for a couple of days.

Ms Harrington finally resigned after trying to help a colleague but was usurped by another colleague who proceeded to make comments about her recent illness.

It is little wonder that Ms Harrington received $25,000.00 for hurt and humiliation. One wonders why that sum was not far more substantial.

The difficulty with the decision, however, lies with the $38,243 lost wages which are calculated until August 2010 when legal aid was declined. Ms Harrington had been on a sickness benefit until those payments ceased at the end of 2012. A sickness benefit signifies an inability to work.

Yet the claim is for lost wages that she would have received if she had been at work.

The ERA reasons that the ability of the respondent to be on the sickness benefit was directly attributable to Ms Harrington’s hurt but later acknowledges that Ms Harrington had a pre-existing psychological injury. The decision appears to go a little far in awarding loss of wages when Ms Harrington could not work. It may have been better to put the matter in terms of hurt and humiliation damages.

The decision could be setting a dangerous precedent for unlimited lost wages. The award was equivalent to almost 5 times the wages earnt from the short employment relationship.