Judge sides with school bus driver

Tranzit school bus driver dropping children off after school at the Queen St stop. PHOTO/KAREN COLTMAN

KAREN COLTMAN

karen.coltman@age.co.nz

Masterton’s Tranzit Coachlines is under fire in the employment court after what has been described by a union as “reprehensible” conduct.

Four and a half months ago, Tranzit school bus driver Paul Morgan won an employment court hearing about leave, but the process is not over yet.

He had been employed by Tranzit for more than 18 years on a series of fixed-term contracts which had left him out of pocket, and out of annual leave.

“They arranged things, so Mr Morgan never had any annual leave entitlement paid for Christmas and New Year public holidays in his 19 years of service,” Morgan’s representative Graeme Clarke, former general secretary of The New Zealand Tramways Union said.

In a judgement on May 28 following a February hearing in The Employment Court of New Zealand Wellington, Chief Judge Christina Inglis ruled that the termination of Morgan’s employment in December 2014 and 2017 had no effect and Morgan was to be treated as though he was a permanent employee throughout this period. Any accrued entitlements would be assessed on that basis.

The union only challenged recent contracts.

But Morgan is still waiting for Tranzit to act on the ruling.

Tranzit will need to file a notice of opposition to the ruling by Monday.

The company has twice filed for an extension to oppose the ruling because its counsel was on holiday.

“Tranzit tends to pay school bus drivers on fixed term contracts set to end before Christmas and provide 8 per cent of their pay, in lieu of leave,” Clarke said.

“Drivers then go on unpaid leave until mid-January and start a new contract then.

“Because of this arrangement, the clock for counting continuous service to get any actual leave entitlement goes back to zero.”
Clarke said the delay in acting on the ruling was all part of the company’s bad attitude to school bus drivers.

“They don’t act in good faith, they won’t come to mediation to settle this and the delays go on,” he said.

“The effect of the court’s decision is that [Morgan] is permanent.”

The union is fed up with Tranzit’s poor communication.

“We have been ignored,” Clarke said.

“This issue started in 2012. The conduct of these people is reprehensible.

“Four times we requested a mediation meeting with Tranzit and each time there is no communication back. This is a breach of good faith.”

Chief Judge Inglis found that Paul Morgan’s individual employment agreements starting January 26, 2015, and January 29, 2018, did not comply with Section 66 of the Employment Relations Act 2000.

A person employed under a fixed-term agreement which does not satisfy the requirements of Section 66 of the Act may elect to treat the expiry of the agreement as ineffective.

She agreed Morgan was to be treated as a permanent employee as the employment contract never expired.

Inglis found that Tranzit’s habit of ending contracts in December because of the uncertainty of its contract with the Ministry of Education was unreasonable.

“The contract with the Ministry has in fact been solid for the last 18-year period Mr Morgan has been employed,” Inglis said.

Another reason Inglis gave for not accepting the financial uncertainty argument is that Tranzit’s employment contracts include a redundancy clause, so it has provision for financial uncertainty anyway.

“The point is that employing Mr Morgan on a fixed-term agreement, when the agreement itself provides for termination in the circumstances said to justify the fixed term, strongly undermines the company’s claim that the fixed term is both genuine and reasonable.”

Morgan returns to work on Monday, the same day Tranzit are expected to lodge their opposition to Inglis’ ruling.

Trazit’s lawyer Mike Gould said his client “[declined] to make any comment on this matter”.