| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 91A/09 |
| Hearing date | 11 Sep 2009 - 14 Sep 2009 (2 days) |
| Determination date | 07 December 2009 |
| Member | J Crichton |
| Representation | G Watson ; S Dyhrberg |
| Location | Wellington |
| Parties | Frawley v Employers' and Manufacturers' Association (Central) Inc |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - During telephone conversation with senior employee (“C”) of entity that was member of respondent applicant became aware C discussing own employment problem - Applicant continued to advise C - Following investigation process applicant dismissed for serious misconduct for breach of professional obligations for conflict of interest situation - Applicant sought to draw distinction between advice and representation - Authority found distinction not helpful - Applicant claimed nature of allegations facing never clear - Claimed accused of failure to identify conflict of interest and for giving advice - Authority found were two aspects of same issue - Applicant raised point in mitigation that respondent’s principle point of contact with members was through senior employees of members and good relationship with them important and failure to look after them potentially damaging to respondent’s interest - Applicant claimed respondent predetermined matter - Authority found while respondent’s language in correspondence not ideal, no evidence of predetermination - Authority found no evidence to support allegation dismissal was shortcut redundancy - Applicant claimed respondent should have interviewed C - Authority found no obligation on respondent to interview C - Found unlikely respondent would have reached different conclusion if had - Applicant claimed would have behaved differently had known respondent actively representing C’s employer about employment relationship problems with C - Authority found potential for conflict of interest in giving C advice should have been self evident whether knew respondent actively involved or not - Applicant claimed no conflict of interest policy and never trained about conflicts - Authority found applicant senior employee with 16 years experience and should have understood nature of conflict given respondent’s purpose - Applicant’s disparity of treatment claim rejected - Authority found fair and reasonable employer would have concluded applicant gave advice to C, thus creating conflict of interest situation - Found given findings fair and reasonable employer would have concluded lost trust and confidence in applicant - Dismissal justified - Managing Consultant |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Makatoa v Restaurant Brands (New Zealand) Ltd [1999] 2 ERNZ 311 |
| Number of Pages | 12 |
| PDF File Link: | wa 91a_09.pdf [pdf 39 KB] |