Recently we successfully represented another of our clients against a personal grievance claim brought against them in the Employment Relations Authority.
Allied Faxi is a Chinese owned ice cream manufacturing facility based within the Kerepehi Business Park near Paeroa in the Waikato. While they employ many staff from the local area, they also source employee labour from South Auckland.
Initially employees travelling from South Auckland operated a car-pooling arrangement where small groups of staff came together to take turns driving their own vehicle to work.
Allied Faxi management recognized that the cost of travelling to work (approximately 1.5 hours each way, each day) was significant for staff and, as they had a suitable vehicle sitting idle in the carpark each night, they offered this vehicle to the workers to use in lieu of their private motor vehicles.
The only condition around the use of this vehicle was that; any driver had to hold a full NZ license and it had to be parked in a safe place each night. Allied Faxi agreed to pay for all fuel costs associated with the commute (on a reimbursement basis) and confirmed that they did not have to be aware of the specific details around the daily use of the vehicle (who was driving, who was travelling in the vehicle, where it was parked and what the pickup arrangements were). These things were left at the sole discretion of the employees electing to use this vehicle as their to, and from, work mode. As such, the employees set up their own ‘WhatsApp’ message group to share details amongst themselves with company management not being party to these communications.
One employee, Mr Sean Sun, was required to drive the same vehicle for work purposes during the day as his role required him to do daily pick-ups and delivery of products and materials. As such, Mr Sun became one of the drivers for the daily to and from work commute.
During the period of his employment Mr Sun did not raise any concerns with respect to the travel arrangements, however after he resigned during an interview with a recruiter for a new role, the recruiter suggested to Mr Sun that as he drove other staff to work in a work vehicle this should be deemed as hours worked and Mr Sun would have a claim against Allied Faxi for unpaid wages.
Mr Sun therefore calculated the 3.0 hour daily commute, at time and one half as overtime (as this was outside his usual work hours) and multiplied this by 5 days per week for the period that he had been employed. He then raised a personal grievance against Allied Faxi for his loss of wages claim, and also sought compensation for what he deemed to be migrant exploitation.
Allied Faxi maintained a position that they had not requested Mr Sun to drive the vehicle, nor had they required him to travel to work in this vehicle and that the offer made to Mr Sun, and all other staff, was a purely discretionary offer made in good faith to prevent the staff incurring personal costs in travelling to and from work.
Interestingly, all other staff could recognize the intent of the company’s offer to them, with only Mr Sun believing that he had been disadvantaged through the company’s actions.
As the matter could not be resolved at mediation, Mr Sun elected to take his claims to the ERA.
On review of all the information, the ERA sided in favour of Allied Faxi recognizing the company’s offer was made solely in good faith and that this was a discretionary benefit provided to the staff. Furthermore, the ERA rejected all disadvantage and discrimination claims brought by Mr Sun, with them concluding that Mr Sun was not required to travel in the vehicle if he did not wish to and that it was solely his choice to use this mode of transport in lieu of incurring costs associated with using his private motor vehicle.
As the unsuccessful party, Mr Sun was then required to pay $3,500 as a contribution to the legal costs incurred by the company in successfully defending themselves against the claims.
See the full Determination at https://determinations.era.govt.nz/determination/view/19393
The one thing that Allied Faxi could have done better in putting this arrangement in place would have been to ensure that each employee electing to ride in the company vehicle had signed an agreement confirming the specific details associated with the use of the vehicle. The existence of a signed Travel Agreement by Mr Sun would have enabled the matter to be resolved at an earlier date.
Therefore, the lesson to be learnt for employers in these types of situations, is to ensure that there is always a robust document trail available when you are putting in place any arrangements outside of the usual terms and conditions of employment.
If you need assistance in resolving any personal grievance matters, or believe that your processes may not be appropriately documented, please feel free to give us a call.