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Good faith order to provide crane driver training

Good faith order to provide crane driver training
Article Type:
Publication Date:
New Zealand
Judgment Date:

Pender v Lyttelton Port Company Ltd [2018] NZERA Christchurch 137, 21 September 2018

Lyttelton Port Company Ltd has been given a “good faith order” by the Employment Relations Authority that requires the company to train Mr Pender, one of their cargo handlers, as a crane driver.

In April 2017 the company advertised internally for cargo handlers who were willing to be trained as crane drivers within one of the four cargo handling groups (A to D). Each group had approximately 40 cargo handlers and between 10 and 12 of these performed crane driver duties within their respective group. The crane drivers received an allowance of $2.06 per hour.

After an unsuccessful application in 2013, Mr Pender applied again in 2017 in response to the company’s advertisement. The advertisement stated that some successful applicants may have to change the group they work in and they were asked to state their preferred group.  It appeared that 12 crane drivers were needed but only two were required in Group B, which was Mr Pender’s group.

A training assessment then took place and Mr Pender achieved a score of 80.93 per cent, putting him sixth overall when ranked across all the groups. He was later informed by the trainer that cargo handlers would not be able to change groups to secure a crane driver training opportunity.

Mr Pender was told a couple of months later that he would not be offered training as a crane driver because he was ranked fourth in Group B (with two drivers required). After raising his concern about this with his union and the employer, he brought a personal grievance for unjustified disadvantage when the issue was not resolved. He claimed that the collective agreement (CA) supported his argument where the coverage clause listed the functions of a cargo handler as including driving cranes. The CA also provided at cl 1.5 that the purpose of the CA was “…to afford each employee the same … opportunities for training, promotion and transfer as are made available for other employees of the same or substantially similar qualifications, experience or skills employed in the same or substantially similar circumstances.”

The Authority held that while Mr Pender was given an opportunity for training, he was not treated the same as other employees because he was not trained as a crane driver when other cargo handlers with lower scores in the initial assessment process were. Further, the failure by Lyttelton to train Mr Pender meant he was not given an opportunity to “increase [his] skill levels and job satisfaction” in contravention of cl 5.4 of the CA.

Lyttelton relied on “employer discretion” on whether to transfer a cargo handler to another group and it said this should not be interfered with where Mr Pender had been treated fairly. The Authority said the problem was that Mr Pender was not treated fairly. It found that clauses 1.5 and 5.4 of the CA were conditions of Mr Pender’s employment and they had been breached without justification by Lyttelton to his disadvantage.

Lyttelton also breached its good faith obligations by conduct that mislead or was likely to mislead Mr Pender. No attempt was made by the company to inform him of the revised condition that applicants would not be able to change groups. The company knew of Mr Pender’s previous attempt to become a crane driver. If it wished to change the criteria, as was arguably its right, it should have, consistent with its obligations under s 4(1A)(b) of the Employment Relations Act 2000 (the Act), been open and communicative with all cargo handlers about this.

The Authority considered that a financial penalty would not actually remedy the breach of good faith. It examined other options available to it and, relying on s 162 of the Act that allowed the Authority to make order as if it were a contract, it made a good faith order which it said was akin to a mandatory injunction remedying an established breach.

The Authority ordered the employer to train Mr Pender as a crane driver.

s 4(1A)(b) of the Employment Relations Act 2000
Organisations Mentioned:
Employment Relations Authority
Reference No:

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