| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 260 |
| Hearing date | 5 Jun 2012 |
| Determination date | 31 July 2012 |
| Member | D King |
| Representation | J McBride ; S Dench |
| Parties | Pickering v Detection Services Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct - Applicant claimed unjustifiably dismissed – Authority found applicant's dismissal not justified on basis applicant would not hand over product development or agree respondent would have all rights in product – Found respondent failed to carry out fair investigation – Found open to respondent to conclude could no longer trust applicant - Dismissal unjustified – REMEDIES - 50 per cent contributory conduct – Found applicant did not mitigate loss so reimbursement of lost wages not appropriate - $5,000 compensation appropriate - ARREARS OF WAGES – Found applicant entitled to bonus - Respondent to pay applicant $117,351 arrears of wages - General Manager |
| Abstract | Applicant employed as general manager. Applicant claimed unjustifiably dismissed by respondent. Applicant did not sign employment agreement (“EA”). EA clause stated any design or process created by applicant during employment was respondent’s absolute property. Applicant and respondent director (“S”) had discussed development of particular product before employment commenced. Parties disputed whether product worked on by applicant was jointly developed by parties or only applicant’s work. Applicant claimed developed product on own with assistance of consultants and completed work in own time and at own expense. Respondent claimed product joint venture which amounted to fiduciary relationship and created constructive trust over intellectual and property rights in product. Respondent claimed applicant justifiably dismissed as applicant attempted to appropriate respondent’s property. Respondent denied applicant told respondent had incorporated own company (“A”) as vehicle for ongoing development of product. Respondent only told about A five months later. S offered to buy shares in A. Applicant failed to supply invoices relating to product development when requested by respondent. Respondent attempted to buy product off A. Applicant suspended before applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Applicant employed by respondent. Respondent asked applicant to supply invoices so could pay for any costs incurred by applicant in developing product. Authority did not need to determine whether parties entered into joint venture, rather whether applicant’s behaviour relevant to justifiability of applicant’s dismissal. Applicant developed product outside employment relationship with respondent but on a joint basis with S and respondent. Applicant had trust and confidence obligations towards respondent. Applicant failed to supply invoices when requested and should have informed respondent about intention to incorporate A. Respondent’s later assertions respondent had full ownership of product not helpful. S not justified in dismissing applicant on basis applicant would not hand over product development or agree respondent would have all rights in product. Respondent failed to carry out fair investigation. Open to respondent to conclude could no longer trust applicant. Dismissal unjustified. REMEDIES: 50 per cent contributory conduct. Applicant did not mitigate loss so reimbursement of lost wages not appropriate. $5,000 compensation appropriate. No basis for Authority to award interest on applicant’s loan.;ARREARS OF WAGES: Applicant entitled to bonus. Respondent to pay applicant $117,351 arrears of wages. |
| Result | Applications granted ; Contributory conduct (50%) ; Compensation for humiliation etc ($5,000) ; Arrears of wages ($117,351) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Companies Act 1993 s183(2) |
| Cases Cited | Empress Abalone Ltd v Langdon [2000] 2 ERNZ 53;Smith v Christchurch Press Company Ltd [2000] 1 ERNZ 624 ; [2001] NZLR 407 |
| Number of Pages | 15 |
| PDF File Link: | 2012_NZERA_Auckland_260.pdf [pdf 210 KB] |