A truck driver sacked after sharing a Stuff story in his work WhatsApp group has been awarded over $20,000 for unfair dismissal by the Employment Relations Authority (ERA).
Just 20 minutes after truckie Gurjit Singh shared the link, his boss sacked him, via a message shared in the same group.
His boss, Jarnail Singh Dhaliwal, would later call Singh’s posting a “gross incitement”.
Auckland haulage company Veer Enterprises must now pay Singh $20,500 for unfair dismissal, lost wages and illegal deductions, as well as a $3000 penalty to the Crown.
And Dhaliwal, the company’s sole shareholder, can be held personally liable if the company fails to pay.
On March 23 last year, the day the first Covid-19 lockdown was announced, Singh shared with his six fellow drivers an employment law column published on Stuff which discussed whether employers would have to pay wages during lockdowns.
Shortly after came Dhaliwal’s reply, giving him two weeks’ notice. Dhaliwal followed up with an email in which he said he was dismissing Singh for being late to work and for damaging work vehicles, and he would be making wage deductions for two accidents Singh had while driving for Veer. Singh was then removed from the drivers’ WhatsApp group.
Singh wrote back to his boss saying he was punctual and never took sick leave. Three days later, when he asked Dhaliwal for a letter explaining he was an essential service provider, in case his truck was halted by police during the lockdown, Dhaliwal declined, and Singh did not work for Veer again.
Dhaliwal then withheld $2070 from Singh’s final wage slips for the two accidents. He’d already deducted about $1000 from earlier wage packets.
The ERA found the deductions, for accidents in October 2018 and January 2019, both when Singh was driving at the Ports of Auckland, were illegal.
On the first occasion, Singh damaged all four tyres after hitting a post. He denied he had told Dhaliwal he was on his cellphone at the time, it was his fault, and he would pay.
On the second occasion, he scraped a mudguard reversing out of a tight space, and shortly after he put a $1500 toolbox on the truck bed ready to make a repair, a crane placed a shipping container on top, crushing the toolbox.
ERA member Robin Arthur said the deductions were made on the “dubious premise” that employers could withhold wages for mistakes made by employees that cost their employer. Veer had essentially deducted its insurance excess from Singh’s wages, and he was being effectively used as an unofficial insurer. A contract clause saying employees would pay “for any accident” was too broad and unenforceable.
Veer’s defence said they were entitled to dismiss Singh for unpunctuality, damaging the truck, reduced work, and for posting “some very provocative comments” which disrupted operations at a time of crisis.
In his evidence, Dhaliwal said circulating the article was a “gross incitement” to other workers, and was posted because Singh had been pressing him to apply for the wage subsidy. He had refused, pointing out the firm would keep operating through lockdown, and he didn’t think it fair to take government money.
But Arthur said circulating the story on WhatsApp was no different to a worker sharing a newspaper and “while the venue for sharing that message was a ‘virtual’ work space this, again, was no different than workers sharing views in their physical workplace”. Arthur said the sacking was simply an act of “reprisal”.
He said there was no evidence of unpunctuality from Singh, and no evidence of any disciplinary action against him after the two crashes, so none of the grounds for dismissal were fair.
Arthur said Singh was a robust person but felt humiliated by being sacked in the WhatsApp group and was embarrassed it meant he couldn’t contribute to the costs of his brothers’ wedding shortly after, so awarded $10,000 for “humiliation, loss of dignity and injury to his feelings”, $6750 for the loss of wages and $3801 for unlawful deductions, holiday pay and interest.
Singh’s advocate, Sunny Sehgal, said it was “disgraceful” that Singh had been sacked by text message. He said when Singh approached him, he was “in shock and felt hopeless”.
It was “a huge victory” that the authority had held Dhaliwal personally liable, saying it used to be “easy for businesses to run away from the obligation of payment after a determination”.
Gurjit Singh said he was “very happy” with the outcome of the case. He had originally had a good relationship with Dhaliwal, but it had soured in early 2020 when his hours were cut. Dhaliwal had said business was down because of reduced imports from China due to Covid. They had exchanged messages on about March 22 about whether Dhaliwal would pursue the wage subsidy, and he felt that was the real reason why he had been dismissed. He was then stuck at home for six weeks without work and income during the first lockdown before finding another job.
Dhaliwal told Stuff he felt the ERA decision was unfair, because he had legally dismissed Singh by providing two weeks notice. He claimed Singh had been advocating for the drivers to either refuse to work during lockdown, and get Dhaliwal to claim the wage subsidy, or to work for cash inducements during lockdown. “I didn’t want any trouble because I was worried for my business … I run a small business genuinely without skipping taxes and by following [the] rules,” Dhaliwal said. “Twenty employees were working for me at that time, and to save another 19 people’s jobs I have to fire him.”
Dhaliwal said the ERA was “one-sided” and always favoured the employees over the employer. “They are a collection department who collect money from employers and give it to employees. This is my business and I built it by my hard work. This is my decision to whom I have to fire and to whom I have to hire according to the employment contract. This decision is ridiculous.”
Dhaliwal said he felt his fine was much larger because he was Indian. He said he had just sold the business, but would pay the money in instalments.