| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 177A/08 |
| Hearing date | 8 Jul 2008 - 9 Jul 2008 (2 days) |
| Determination date | 18 August 2008 |
| Member | L Robinson |
| Representation | J Armstrong, S Hoskin ; S Langton, M O'Brien |
| Location | Auckland |
| Parties | Blackmore v General Distributors Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Summary dismissal – Applicant, old duty manager, commenced sexual relationship with “W”, 16 year old subordinate employee – Manager (“H”) learned of relationship - Human resources specialist (“K”) advised H to put conflict of interest policy (“policy”) to applicant and W – H told applicant and W policy required them to disclose personal relationship – Applicant irate, denied relationship and argued no right to ask question – Applicant sent K vehement email – K informed respondent’s area manager (“D”) - D accepted applicant’s denial of relationship so matter not pursued further – Applicant upset when W ended relationship – Applicant’s work affected and failed to report for shifts – Applicant requested K reorganise W’s shifts – Applicant suggested to W that should resign – Disciplinary investigation commenced – Applicant admitted to sexual relationship with W – Respondent concluded two acts of serious misconduct – Firstly, lied about true nature of relationship with W and secondly encouraged W to resign – Respondent also concluded respondent absent without authority and disobeyed instruction to maintain reasonable behaviour amounted to misconduct – Applicant rejected relocation offer – Applicant’s employment terminated - Authority found policy not known to applicant, W or H prior to K informing them – However, found applicant made aware of policy and continued relationship – Authority found policy that of parent company, PEL, not of respondent employer - No evidence that policy formally adopted by respondent - Although allegations of breach of policy factually established, policy not applicable to applicant’s employment – Unnecessary to determine whether breach constituted grounds for summary dismissal – Authority accepted lying to employer may be grounds for summary dismissal as serious breach of duty of good faith – Respondent entitled to expect higher standards from managerial personnel – Authority found allegation of lying not formally put to applicant – Found applicant was heard in relation to policy compliance, but not given opportunity to explain whether or why had lied – Essential enquiry into lies did not occur before summary dismissal – Not actions of fair and reasonable employer – Not necessary to comment on other allegations of misconduct – Unjustifiably dismissed – REMEDIES – Found applicant adamantly refused to accept respondent had legitimate concern in applicant’s relationships with employees he supervised – Authority rejected applicant’s explanation that did not know what respondent asking – Found applicant deliberately lied to H, K and D – Applicant ultimately sought respondent’s assistance to maintain work relationship with W, despite original disdain for policy – Respondent unable to manage situation properly due to applicant’s lies – Blameworthy conduct directly linked to situation that led to personal grievance – Noted maxim that no person should profit from own wrong – No remedies awarded - Duty manager |
| Result | Application granted |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Cooper & Levin Meats Limited, unreported, WA 40/08, 10 April 2008, L Robinson;Salt v Fell [2008] NZCA 128 |
| Number of Pages | 18 |
| PDF File Link: | aa 177a_08.pdf [pdf 70 KB] |