KiwiRail worker sacking justified: ERA

22:12, Jun 25 2014

KiwiRail was justified in sacking a worker accused of puncturing the tyre of a fellow staff member after a workplace argument.

Kieran Waite complained to the Employment Relations Authority (ERA) that his dismissal was unjustified, but in a ruling released today the authority rejected his claim.

However, it did fault KiwiRail for aspects of the way in which it conducted its investigation into the incident.

Authority member James Crichton said Waite had been employed at KiwiRail's Auckland Metro Maintenance facility at Westfield.

He was working an afternoon shift on July 19, 2013 when he went to the office of servicing manager Michael Williams, apparently to complete a timesheet.

There was an "unpleasant exchange" between Waite and another worker, Peter Speechley, with Waite asking Speechley whether he was going to "get the f*** down there and help the boys", because it was a busy night.


The authority said Waite told it Speechley responded with words to the effect of, "who the f*** are you, you're not my boss".

Speechley left work the next morning about 2am, and about an hour later contacted Williams to report someone had intentionally damaged his car, deflating one tyre and letting most of the air out another.

Williams went outside to inspect the tyre, which was in the boot of Speechley's vehicle, after he had changed it for the spare.

Williams found a hole in the side wall of the tyre which he thought was about the width of a small flat-headed screwdriver. The other tyre on the same side of the car was flat, with the valve cap loose.

KiwiRail obtained footage from security cameras, which showed earlier in the evening Waite crouching beside the left side of Speechley's car before leaving in his own car.

KiwiRail started a disciplinary process and eventually concluded Waite had deliberately damaged Speechley's vehicle and dismissed him.

Waite complained to the ERA that KiwiRail had not considered alternative explanations for the tyres being deflated, and had just accepted Speechley's statement that the tyres had been in good condition at the beginning of his shift.

Crichton agreed, saying it was "not enough for an investigating employer ... to simply take the word of the complainant".

"Part of an investigator's obligations ... is to eliminate other possible explanations," he said.

"I am not satisfied that KiwiRail did that in relation to the damage to Mr Speechley's vehicle."

However, he said this was not enough to "undermine" KiwiRail's investigation, and he was satisfied the damage to the rear tyre was such that it would have deflated very quickly and been noticed by Speechley as he drove to work if it had been damaged while driving.

Crichton also found it likely the deflated front tyre was an unrelated incident, caused by poor maintenance.

Waite also complained that KiwiRail had not protected the evidence, with Speechley replacing the damaged tyre after he had shown it to Williams. Crichton agreed it would have been better if KiwiRail had kept the tyre, as the only evidence of its condition was from Williams, who had seen the tyre once, in the boot of a car at 3am.

Waite also complained the full CCTV tape was not made available to him, with only a "highlights package" of the evening's tape presented, which had been put together by the company that provided the CCTV coverage. This was also the only material KiwiRail had.

Crichton said this was "clearly unsatisfactory", and KiwiRail should have obtained and protected all the footage. However, he said KiwiRail had not withheld any information from Waite.

A further criticism from Waite was that the footage did not show any misconduct, and the footage was consistent with his account, which was that he had dropped some money on the ground and had bent down to pick it up.

KiwiRail responded that the footage was not the only evidence it had relied on, as it had also taken into account the "troubled relationship" between Waite and Speechley, that it was "not persuaded" by Waite's explanation, and that notwithstanding the inconclusive nature of the CCTV footage, Waite was the only person close enough to the vehicle to have caused the damage.

Crichton said that while he had identified criticisms of KiwiRail's investigation process, "I have not been persuaded that those failings undermined its process nor made the conclusion that it ultimately drew unsafe".