A Wellington bus driver sacked from his job of 20 years after his employer accused him of failing to report an accident will be paid more than $30,000 after his dismissal was ruled unfair.

Paul Abigail took his case to the Employment Relations Authority after he was fired in July 2022.

He sought compensation for lost wages, hurt and humiliation, and costs from Wellington City Transport Ltd where he’d worked for two decades.

The ERA heard Abigail was dismissed for failing to report an accident, when his bus connected with a lamp post, and a window on the bus was broken.

Abigail said he was not aware that an accident had occurred, and his dismissal was unjustified.

In a newly released ERA decision, the accident and reasons for Abigail’s dismissal were outlined in detail.

“Mr Abigail had worked for WCT for some 20 years, as a bus driver, and in supervisory roles. At the time of his dismissal, he was working as a bus driver,” said ERA member Claire English.

“On Tuesday 5 July 2022, Mr Abigail was driving a bus in Strathmore. While turning a corner, he heard a bang.

“He stopped the bus, and exited via the rear door in an attempt to see what had caused the noise. He could not see anything wrong, so he continued on with his route.

“He finished his shift for the day, and parked the bus outside the workshops, for planned maintenance, as he had been requested to do by the bus dispatcher at the beginning of the day. It was later discovered that a back rear window of the bus was broken/cracked.”

Abigail was adamant he was not aware of the damage - he had not seen it when he checked and it was not raised with him by any passengers on the route.

Paul Abigail drove buses in Wellington for more than 20 years before he was sacked over a minor accident. Photo / Mark Mitchell

WCT’s regional operations manager Ken Pearson - now the general manager - was alerted to the damage.

He said at the time WCT was concerned that its employees were failing to report accidents.

In response to this, in December 2021 a letter went to all staff reminding them “of the importance of accident reporting” and how they were each required to report all accidents, “regardless of severity, including accidents with fixed object”.

Pearson said the letter stated that failure to report “could amount to serious misconduct, and disciplinary action leading to termination of employment”.

Abigail received the letter, signed it and returned it to management.

After the bus was damaged he was called to an “investigation meeting” on the grounds that “the non-reporting of accidents is in direct contrast to the letter that was presented and signed by you”.

At the meeting Abigail maintained he heard a noise and stopped to check the bus but found nothing amiss.

However, Pearson decided that Abigail was aware that there had been a collision, and a disciplinary process was required.

At a further disciplinary meeting Pearson said he thought it was “clear” that Abigail was aware of the accident and he had “no proper justification for failing to report” it.

“Mr Pearson formed a preliminary view that Mr Abigail had committed serious misconduct and dismissal was proposed,” said English.

Abigail responded saying a final written warning would be more appropriate but Pearson remained of the view serious misconduct had occurred.

“Mr Pearson further considered that dismissal was required, because Mr Abigail had already failed to heed the earlier letter requiring him to report all accidents, and because it was important to uphold the simplicity and clarity of the rule that all accidents must be reported.

“He also said that ‘If I didn’t uphold the requirement with respect to him and [sic] would have difficulty upholding the standard with respect to everyone else’.”

Abigail’s dismissal was confirmed on July 14.

The ERA ruled the dismissal was unfair and ordered WCT to pay the driver. Photo / 123RF

He told the ERA he felt “gutted”, and that his word was not good enough.

“He says he doesn’t know what else he could have done in this situation,” English said.

“He explained that he had always taken health and safety and the associated reporting requirements, seriously. In the past, he had had two small accidents while driving a bus, and he had reported them promptly, and been supported by the company in resolving them.

“He said he had always encouraged other staff members to be proactive in reporting, and pointed out what in his view was the irony of this situation, in that if he had reported, he would not have been dismissed.

“However, he explained that – at the time – he did not believe he had had an accident, and was not aware that any reporting obligation had been triggered.”

The ERA ruled that after speaking to Abigail it accepted that “he did not know that he had been in an accident”.

“He maintained his stance, under repeated and aggressive questioning,” said English.

“In addition, my view is that Mr Abigail’s dismissal was motivated in substantial part by Mr Pearson’s determination to apply the new accident reporting policy strictly, and a concern that any decision by him short of dismissal would be perceived to indicate or inadvertently create a “loophole” in the policy, which would have the impact of undermining the impact of the policy when applied to other drivers in the future.

“Mr Pearson also made it clear when giving evidence that he did not take into account Mr Abigail’s extensive past service of some 20 years, or his previous track record of actively reporting accidents in line with policy as mitigating factors.”

English said WTC “did not properly consider” Abigail’s explanation, nor did it consider the logical limitations of its own policy.

“Accordingly, I find that Mr Abigail’s dismissal was unjustified,’ she ruled.

WTC was ordered to pay Abigail $21,736.20 in lost wages and $8000 for hurt and humiliation.

“He gave evidence that he felt taken by surprise, and was “gutted” not to be believed, especially after so many years of service. He found this hurtful,” said English.

“He was also taken by surprise by the suddenness of the dismissal… I accept that Mr Abigail suffered hurt and humiliation as a result of his dismissal, although the impacts on him were not as severe as they could have been.

“I also take into account the impact of being subject to summary dismissal after 20 years of service. An award of $8000 is appropriate.”

WTC must pay Abigail within 28 days.