| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 38/10 |
| Hearing date | 3 Apr 2009 - 20 May 2009 (2 days) |
| Determination date | 29 January 2010 |
| Member | A Dumbleton |
| Representation | R Harrison ; S Langton |
| Location | Auckland |
| Parties | Watson v Progressive Enterprises Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant resigned from respondent to work for competitor (“C”) – Respondent conducted audit of applicant’s computer and discovered applicant emailed confidential information to home computer – Disciplinary meeting held – Respondent advised matter serious and dismissal possible - Applicant explained information used to prepare handover report to new manager – Explained information not confidential – Respondent’s security manager (“S”) conducted report and concluded applicant “dishonestly appropriated company information” – Concluded applicant’s resignation to deprive respondent of property – During disciplinary inquiry, respondent asserted report privileged and declined disclosure to applicant – Applicant lodged application with Employment Relations Authority (“ERA”) to determine whether applicant entitled to full participation in disciplinary inquiry – Respondent dismissed applicant before ERA determination - Applicant claimed respondent’s failure to give applicant reasonable time to inspect relevant information unjustified – Authority found respondent gave reasonable time for document inspection - Applicant claimed dismissal before ERA determination unjustified – Found respondent deprived applicant of opportunity to have application determined by ERA – Found fair and reasonable employer would have waited for ERA determination – Found dismissal breached employment agreement (“EA”) as EA provided disputes to be resolved by ERA – Applicant claimed report not privileged therefore should have been disclosed in good faith – Found report not privileged as routine report and provided outcome of audit – Found report prejudicial to applicant – Found applicant entitled to view report - Found failure to disclose report unjustified – Applicant claimed serious misconduct conclusion unjustified – Found serious misconduct conclusion justified – Information confidential – High volumes sent to home computer - Conduct surreptitious – Found confidentiality breached as applicant used information to exploit own ends – Found reasonable for respondent to reject applicant’s explanation as applicant would have informed respondent if using information for handover process – Dismissal unjustified - REMEDIES – Respondent claimed applicant’s conduct entirely contributed to dismissal - Authority found although serious misconduct conclusion warranted, applicant should have been disciplined using proper procedures – Found respondent’s pre-emption of ERA determination relevant – Found 90 percent contributory conduct – Reimbursement of 2 weeks lost wages of $9,115 – Found $5,000 compensation appropriate because applicant would have been dismissed even if report disclosed and respondent waited for ERA determination - PENALTY – Applicant sought penalty for breach of s4(1A)(c) Employment Relations Act 2000 – Applicant claimed respondent’s disclosure of material misleading and breached s4(1A)(c) Act by not providing reasonable time for inspection - Authority found first breach deliberate and serious but not sustained – Found second breach not within Authority’s jurisdiction – Penalty declined – Senior Manager |
| Result | Application granted (Unjustified dismissal) ; Application dismissed (Penalty) ; Reimbursement of lost wages ($9,115.96 reduced to $911.60) ; Compensation for humiliation etc ($5,000 reduced to $500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A)(C);ERA s103A;ERA s127;ERA s133;Crimes Act 1961 s230;Crimes Act 1961 s240;Crimes Act 1961 s249 |
| Cases Cited | Salt v Richard Fell, Governor for Pitcairn, Henderson, Dulcie & Oneo Islands [2008] NZCA 128;Watson v Progressive Enterprises Ltd unreported, A Dumbleton, 16 Mar 2009, AA 78/09;Waitakere City Council v Ioane [2004] 2 ERNZ 194 |
| Number of Pages | 22 |
| PDF File Link: | aa 38_10.pdf [pdf 67 KB] |