| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 56/10 |
| Hearing date | 9 Mar 2010 |
| Determination date | 31 March 2010 |
| Member | D Asher |
| Representation | G Ogilvie ; P McBride |
| Location | Wellington |
| Parties | Gordon v Student Management Software Solutions Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably dismissed by respondent – Respondent argued applicant misappropriated electronic code that was property belonging to respondent – Authority noted parties’ failure to provide agreed bundle of documents unnecessarily lengthened investigation – Respondent called applicant to meeting alleging threat to security of business by applicant and other staff intending to leave respondent with respondent’s property – Subsequently respondent informed applicant actions amounted to serious misconduct, and preliminary view that summary dismissal appropriate – Respondent advised applicant that believed applicant attempted to remotely access server in breach of direction not to – Applicant acknowledged knew not to access server but did so out of idle curiosity – Applicant summarily dismissed – Respondent argued applicant justifiably dismissed for undertaking substantial tendering for own private company during work time and using respondent’s systems and equipment – Authority placed significant weight on evidence of applicant’s former manager (“M”) – Authority found respondent condoned and encouraged majority of applicant’s activities outside respondent – Found respondent had “gifted” disputed data validation tool to applicant – Found M’s successor failed to understand true nature of respondent’s relationship with applicant – Found respondent encouraged applicant to maintain work interests outside of respondent as created active cross-pollination – Found suited both parties to purposefully blur lines between applicant’s duties for respondent and any secondary employment – Found respondent failed to consider applicant’s impeccable work history – Dismissal unjustified – Remedies – Found applicant had no contractual basis to claim bonus – Found reimbursement of lost wages owing to applicant – Found applicant’s actions in accessing network despite instruction not to was contributory conduct justifying reduction of remedies by 5 percent – Found effect of unjustified dismissal upon applicant profound – Found $10,000 compensation before reduction for contributory conduct appropriate – COUNTERCLAIM – BREACH OF CONTRACT – Authority dismissed counterclaim for damages arising from applicant’s alleged misappropriation of data validation tool – However, Authority recorded applicant’s undertaking to provide tool to respondent – Senior developer/analyst |
| Result | Application dismissed (Counterclaim) ; Application granted (Unjustified dismissal) ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($10,000 reduced to $9,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand Ltd v V (2009) 9 NZELC 93; 6 NZELR 582 |
| Number of Pages | 11 |
| PDF File Link: | wa 56_10.pdf [pdf 34 KB] |