| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 54A/08 |
| Hearing date | 18 Apr 2008 : 27 Jun 2008 (2 days) |
| Determination date | 21 July 2008 |
| Member | Y S Oldfield |
| Representation | M Ryan ; M Dew |
| Location | Auckland |
| Parties | Davidson v Y3K Energy Pty Ltd & Anor |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant called to meeting with respondents’ managing director (“K”) - Applicant given two days to choose resignation or dismissal - Applicant sought legal advice and two days later applicant’s lawyer contacted K requesting meeting - K informed lawyer too late for meeting as two day deadline passed - Next day applicant dismissed via email - Email set out list of reasons for dismissal, including performance issues not previously raised - However, respondent no longer relied on all reasons given in email as justification for dismissal - Instead claimed principal concern allegation applicant provided confidential information to shareholder without authorisation and conspired to assist shareholder (“D”) to take over business - D was K’s brother - K and D had seriously fallen out over business venture - Allegations by respondents’ Administration Manager (“P”) based on conversations with applicant - K acknowledged applicant had no prior knowledge of disciplinary meeting, not told dismissal a possibility and not offered opportunity to obtain representation - Authority found given K’s admissions no question disciplinary process procedurally unfair - Found applicant not given satisfactory opportunity to be heard on allegations - Dismissal unjustified - Remedies - Applicant initially claimed not spoken to D, then claimed did not discuss respondents’ business with D - Authority found applicant’s responses brief and non-committal - Applicant told Authority had no major disagreement with P’s evidence - Authority did not accept applicant’s submission that conduct did not exceed point where contribution could be found - Found applicant reported to K and bound to follow direction information not to be supplied to shareholders - Authority considered breach of duty for applicant to have discussed respondents’ affairs with D - Found appeared applicant actively involved in plans to undermine not just K but respondents’ business - Found fair procedure would inevitably have resulted in justified dismissal - Authority satisfied applicant’s actions amounted to serious misconduct, and warranted reduction in remedies - 100 percent contributory conduct found - Applicant not entitled to remedies - COUNTERCLAIM - Respondents counterclaimed for damages for items claimed remained in applicant’s possession after employment ended - Authority found insufficient evidence property remained in applicant’s possession - Authority did not accept respondents’ claim that even if applicant did not have property anymore because was careless in failing to return property should be liable for damages - Found applicant’s employment ended suddenly without opportunity to arrange orderly departure - Found some time since items discussed or even thought about by either party, and already rapidly depreciating in value - Authority did not accept applicant should bear responsibility for fact items lost - Counterclaim dismissed - Manager |
| Result | Application granted (Unjustified dismissal) ; Application dismissed (Counter claim) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Privacy Act 1993 |
| Number of Pages | 8 |
| PDF File Link: | aa 54a_08.pdf [pdf 28 KB] |