A bus company that sacked a driver over concerns about his mental health was found to have “fallen short” in the way it handled it.

Bus driver John McKenzie has now proved his suspension and sacking were unjustified, after failing last year to convince the Employment Relations Authority he was safe to return to work.

McKenzie was dismissed by Tranzurban Wellington Ltd in July last year, having told the company in 2020 he was unable to work at Covid level 2 or higher.

He challenged the dismissal and lodged multiple claims of unjustified disadvantage and alleged Tranzurban had breached the duty of good faith.

McKenzie’s application for interim reinstatement to his job failed, pending the substantive consideration of his claims which have now been decided.

Tranzurban has been ordered to pay him $7200 in compensation plus his average earnings over 42 weeks, less almost $19,000 in lost earnings, reduced by 10 per cent in recognition of the part McKenzie played in his own “demise”, the ERA said.

The ERA was unable to conclude the amount of lost wages due, due to the nature of the evidence, and directed the parties to calculate the amount owed using the above order as guidance.

McKenzie told NZME the final amount paid out was confidential and directed questions to his legal representative Aly Miller for comment, who said on his behalf he was “over the moon” with the authority’s decision.

“John was treated poorly by Tranzurban which refused to accept the advice of medical professionals, who on several occasions confirmed he was a safe driver.”

Tranzurban Wellington general manager Samuel Stairmand told NZME it stood by its decision to prioritise the safety of its team and passengers but did not plan to appeal the decision.

McKenzie, who was employed as a bus driver in June 2019, argued he was unjustifiably disadvantaged by what amounted to an unlawful suspension linked to Tranzurban’s “unjustified access to his health information and referral of medical assessments”.

Tranzurban contended its actions were justified.

A clause in his employment agreement allowed the employer to require a worker to undergo a medical examination if it had reasonable grounds for concerns about the employee’s ability to ensure the safety of themselves and others.

The clause also said refusal to undergo a medical examination could lead to suspension for up to five days, followed by further suspension and ultimately termination of employment if there was continued non-cooperation.

When Covid struck in 2020 McKenzie said he was at risk due to various health conditions, and several absences were recorded.

Tranzurban wrote to McKenzie in October 2021 asking for a current medical certificate explaining why he could not return to work until the country was in Covid level 1. It repeated a request for McKenzie to undertake a specific task analysis medical assessment.

McKenzie was placed on leave without pay but the day after he obtained another certificate which again stated he could not work at Covid level 2 or higher.

In November 2021 McKenzie declined Tranzurban’s consent to an examination, but he agreed to a medical assessment based on access to medical information related to current illnesses or injuries.

McKenzie also got a medical certificate to say he was by then vaccinated and “able to return to full driving with no restrictions”.

But Tranzurban didn’t accept it and instead asked McKenzie to complete a specific Drivers Medical Assessment (a DL9), which included consideration of any “mental disorder that may impair an individual’s ability to drive safely”.

The request, by letter, also made a number of references to incidents with staff interactions which had “failed to allay Tranzurban’s concerns”, the ERA said.

McKenzie eventually agreed to undertake the driver medical assessment but gave Tranzurban only two pages of the four-page assessment.

The ERA said the missing pages contained the detail and perhaps most importantly from Tranzurban’s perspective the section about mental disorders.

Tranzurban advised McKenzie that he was not now allowed to return to work.

The company then received an email from the doctor who had performed the assessment, who said the employer only needed to know if the employee was medically fit to drive commercially which McKenzie was.

He said a cognitive assessment would only be carried out on someone suspected of having dementia or returning to driving after a serious brain injury, and determined that McKenzie was “clearly cognitively fine”.

Tranzurban remained concerned and asked for a second examination by a company doctor, to which McKenzie agreed, but then failed to turn up to the appointment.

Tranzurban told him that continued refusal could lead to the termination of his employment.

McKenzie then raised a personal grievance, which led to talks over a solution, but Tranzurban declined a suggestion that he visit an occupational therapist and forwarded an amended referral for assessment to the original provider.

An occupational physician concluded that while there was no underlying health condition that might have affected McKenzie doing his job, the report contained some caveats that concerned Tranzurban, which then dismissed McKenzie.

The ERA said McKenzie’s agreement to complete the DL9 assessment effectively meant Tranzurban had bound itself to accept the outcome, being that McKenzie was deemed fit to return and drive.

Loftus did however accept Tranzurban might have held concerns, and if McKenzie’s approach at the investigation meeting was indicative of what Tranzurban faced at the time, he could could see why.

“He was also argumentative when there was no reason to be so. The impression was unfavourable,” Loftus said.

But the fact remained, it was agreed a DL9 pass was acceptable, and that Tranzurban should have conceded McKenzie was fit to return to work.

Loftus said Tranzurban’s “perhaps fatal” attempt to justify a dismissal was shown by its evidence it had lost all trust and confidence in McKenzie, which was a “significant consideration” in the decision.

McKenzie has been driving an Uber since December 2021.

Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.