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Can dismiss driver that has lost license

Parliament has recently strengthened the law relating to drinking and driving. Penalties have been increased, and imprisonment is now a very real possibility for repeat offenders. Once convicted, you will also lose your licence for at least 6 months.

As the following case shows, if you need your licence to do your job, you also risk being dismissed.

Bargain Fencing employed Gary McNamara to drive a delivery truck around the Waikato. In August Mr McNamara was caught drinking and driving in his private car.

In September, McNamara pleaded guilty to the charge, and was fined $695 and disqualified from driving for 6 months. He immediately told his employer of this.

Mr McNamara's disqualification meant that he could no longer perform his job as a truck driver. The company's managing director, David Dodds, tried to discuss the situation with him, but nothing was resolved. In the end, the company dismissed him.

Mr McNamara brought a personal grievance against the company claiming unjustified dismissal.

The Employment Tribunal held that loss of licence by a professional driver did not justify immediate dismissal, particularly when the law allowed for such people to apply to the Court for a limited licence after one month. Instead, the employer was obliged to look at alternatives such as redeployment to another job, suspension with or without pay, or annual leave.

"The employer was not, however, required to act as a welfare agency for the employee. Its own interests in keeping the business running efficiently and economically were not required to be placed secondary to those of the employee in maintaining his employment" the Tribunal said.

The Tribunal accepted that Bargain Fencing was a small business and that redeploying Mr McNamara to another job was not possible. Mr Dodds had also asked Mr McNamara to suggest alternatives to dismissal, but had received no response.

"It was neither fair nor reasonable to expect Mr Dodds to pay Mr McNamara for notional employment in a non-existent job. Mr McNamara had contracted himself to perform work in return for his wages. Through his actions, and not those of his employer, he had made performance impossible for at least a month. In my view Mr Dodds did consider whether there were any practical alternatives [to dismissal] but found there were none. I find that the decision to dismiss was one that a fair and reasonable employer was able to reach in the circumstances of this case. Dismissal was justified on the facts" the Tribunal said.

The Tribunal ordered Mr McNamara to pay $400 costs to his employer.

As Mr McNamara was caught drinking and driving in his private car, and not a work car, there was no issue of misconduct. The Tribunal was concerned only with Mr McNamara's inability to do his job. If an employee is caught drinking and driving in a work car (even outside of work hours), that is serious misconduct and the employee may be summarily dismissed.

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