| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 321 |
| Hearing date | 1-3 Apr 2014;28 May 2014 |
| Determination date | 23 July 2014 |
| Member | E Robinson |
| Representation | S Neville ; G Service |
| Parties | Simpson v IBM New Zealand Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably disadvantaged by respondent's actions and unjustifiably dismissed by respondent - Whether respondent failed to implement salary alignment process - Whether respondent failed to treat writebacks" in fair and reasonable way such that applicant unjustifiably disadvantaged in calculation of commission - Performance improvement plan ("PIP") - PENALTY - GOOD FAITH - Applicant claimed respondent breached duty of good faith - Suspension of applicant's access to e-mail and intranet - Removal of applicant's laptop - COUNTERCLAIM - PENALTY - BREACH OF CONTRACT - Respondent claimed applicant breached employment agreement ("EA") - Whether applicant failed to return company property on termination of employment - Whether applicant stored unauthorised and inappropriate material on work laptop and made covert recordings of conversations with fellow employees - Backup hard drive - Senior solutions (base growth seller)" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Authority ordered non-publication of evidence given, or pleadings filed, in matter. Authority ordered non-publication of respondent's clients referred to in matter. Respondent acted fairly and reasonably by not increasing applicant's sales quota after taking into consideration effect that late timing of implementation would have on applicant. Respondent acted in accordance with policies and applicant's incentive plan regarding treatment of writebacks". Applicant did not take opportunity to speak with general manager and not treated differently to any other seller at respondent. Respondent acted in good faith by embarking on process of explanation to applicant involving senior levels of management. No unjustified disadvantage in respect of "writebacks". Respondent's sales team did not make promises about salary increase but only committed to taking all necessary steps to support application for out of cycle salary increase. Applicant aware that out of cycle salary increase would not proceed as budget not available. Applicant chose not to pursue alternative of seeking retention payment. No unjustified disadvantage relating to salary alignment process. Respondent had prerogative to determine annual salary reviews but fair and reasonable employer would inform employee fully of outcome of review. Breach of good faith for respondent not to inform applicant that performance not at required standard to be submitted for salary increase. Applicant aware of respondent's performance expectations and concerns and had been provided with support. Commencing PIP open to fair and reasonable employer. No breach of duty regarding PIP. No breach of duty other than minor procedural flaw relating to annual salary review procedure. Applicant resigned voluntarily having received offer of alternative employment. No constructive dismissal.;PENALTY - GOOD FAITH: Respondent responsive and communicative in explaining why applicant could not be considered for "writeback" exemption. No breach of good faith not to submit paperwork for out of cycle salary increase that could not have been approved and New Zealand management remained committed to advancing out of cycle pay increase when budget available. Respondent responsive and communicative regarding unavailability of funding for out of cycle salary increase. No breach of good faith relating to salary increase other than failure to communicate in timely manner on outcome of annual salary review. No breach of good faith obligations relating to temporary suspension of access to network or failure to contact applicant following meeting. $500 penalty appropriate.;COUNTERCLAIM - PENALTY - BREACH OF CONTRACT: Applicant breached EA by failing to return all company property, including confidential information, to respondent. Personal images on applicant's work laptop breach of Business Conduct Guidelines core values. Applicant breached duty of good faith by deliberate and sustained recording of meetings with management team. Applicant breached terms of employment. $4,000 penalty appropriate." |
| Result | Applications granted (penalty - good faith)(counterclaim - penalty - breach of contract) ; Penalty ($500)(payable to applicant) ; Penalty ($4,000)(counterclaim)(payable to respondent) ; Applications dismissed (unjustified disadvantage)(unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s136(2);ERA Second Schedule cl10(1) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Simpson v IBM New Zealand Ltd [2014] NZERA Auckland 183;Wellington Road Transport etc IUOW v Fletcher Construction Co Ltd (1983) ERNZ Sel Cas 59;Wellington, Taranaki and Marlborough Clerical etc IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95 |
| Number of Pages | 43 |
| PDF File Link: | 2014_NZERA_Auckland_321.pdf [pdf 437 KB] |