When phone use leads to dismissal: balancing safety with fair process

In New Zealand employment law, even the strongest evidence of misconduct can be undermined by poor process. As recent Employment Relations Authority (ERA) decisions have shown, substantive justification alone isn’t enough to uphold a dismissal. Employers must also follow a fair and lawful process, every time.

Whether it’s a serious safety breach like using a mobile phone while driving, or a broader disciplinary concern, the employer’s failure to follow proper procedures can turn an otherwise valid dismissal into an unjustified one, exposing the business to financial penalties and reputational risk.

In this article, we’ll outline a case where an employee got caught breaking company policy on camera, but the ERA still ruled the termination of said employee as an unjustified dismissal. Why? Because the proper process wasn’t followed. Below, we discuss the facts of the case, the legal responsibility of employers, and the pitfalls to avoid.

Case Summary: Raina v Hall’s Refrigerated Transport Limited [2025]

Mr Raina, employed as a Class 5 driver by Hall’s Refrigerated Transport Limited (Hall’s), was dismissed after what the ERA described as an unreasonable disciplinary process. Mr Raina accused Hall’s of unfair dismissal and sought permanent reinstatement.

The employer was concerned after Mr Raina was observed by two managers using a phone whilst driving and caught on a dashcam using a phone whilst driving on a motorway.

The reasoning behind the dismissal is that the employer had strictly prohibited phone use while driving. And dashboard footage had caught the driver using his phone for at least 30 seconds during motorway use.

Even though the employee clearly broke company policy, the ERA found that there was a procedural failure. When inviting the driver to the disciplinary meeting, the employer didn’t inform him of his right to a support person – a required procedural safeguard in the employer’s own policy. The ERA deemed this omission a serious procedural breach, not a minor defect. Because of this omission, the disciplinary process lacked fairness, indicating breaches of natural justice and procedural good faith.

While acknowledging serious misconduct, the ERA ruled the dismissal unjustified due to these procedural failures. The driver was awarded:

• • Two months’ salary as lost wages.
  • Compensation of NZD 12,000 for hurt and humiliation. This was reduced by 50% to NZD 6,000 due to his contributory behaviour.
  • No reinstatement was ordered, as the ERA accepted that safety and trust concerns justified keeping him off the road.

This case powerfully illustrates that even in the face of serious allegations, employers must deliver fair and transparent processes, not simply rely on the gravity of allegations to justify dismissal.

When is a dismissal justified?

This case underlines the principles embedded in Section 103A of the Employment Relations Act 2000: substantive and procedural justification.

When taking action against an employee, employers should make sure that they meet the requirements of ‘good reason’ (sometimes called ‘substantive justification’). These are:

• having a valid reason to begin the action or process; and
• making any decision for a good and fair reason.

An employer’s reasons for the action must be what a ‘fair and reasonable employer’ could have done at the time of the dismissal or action. To be fair in making decisions, employers should make sure that:

• they sufficiently investigated allegations;
• concerns are raised to the employee;
• the employee has a reasonable opportunity to respond to the concerns; and
•  the employer genuinely considered the employee’s explanation.

Minor defects may be tolerable if they didn’t result in unfair treatment. But significant omissions, like denying the right to representation, will render a dismissal unjustified.

What should businesses do to avoid a similar case?

• Never let procedural rigour fall by the wayside, regardless of how compelling the substance of the case.
• Train managers and HR teams on the importance of procedural compliance, including invitations, right to representation, impartiality, and documentation.
• Review disciplinary policies to ensure they clearly outline employee rights and employer obligations.
• Consider the broader impact, plaintiffs may be partly at fault, but procedural shortcomings can tilt decisions in their favour.

How can Citation HR help?

We know that employment law and compliance can be confusing, especially regarding frustrations around poor employee conduct.

Citation HR is here to make managing staff stress-free. Our HR Software is a complete management system built to help you perfectly manage your business’ HR providing detailed templates and tools. And our 24/7 HR Advice Line is here to provide support and advice whenever you need it.

Get in contact with us today to see how we can help your business with HR.