| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 205 |
| Hearing date | 28 Mar 2011 |
| Determination date | 13 May 2011 |
| Member | R A Monaghan |
| Representation | R Harrison ; J Cox |
| Location | Auckland |
| Parties | Chan v Compass Property Investments Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Respondent claimed applicant raised grievance out of time – Based on evidence provided Authority proceeded on basis grievance raised in time – UNJUSTIFIED DISMISSAL – Serious Misconduct – Respondent claimed applicant misused confidential information, undermined trust and confidence, incited fellow employees to challenge management decisions and acted inappropriately towards other employees – Respondent claimed applicant’s sales targets not met and raised matter with applicant monthly – Parties had further meeting – Discussions summarised in letter to applicant – Authority found applicant told inability to achieve targets caused hardship to company but did not amount to disciplinary warning - Parties attended performance review meeting – Applicant summarised achievements to date and supplied respondent with written testimonials – Applicant claimed respondent did not consider evidence and asked for applicant’s resignation – Claimed respondent informed applicant not being dismissed, instead offered alternative position with lower salary – Respondent denied sought applicant’s resignation but accepted possibility of alternative position raised and applicant told to consider proposal – Employee (“P”) raised complaints at staff meeting about respondent’s marketing campaign – Respondent claimed applicant told P sales figures – Claimed applicant incited or encouraged P – Claimed applicant had not acted in good faith and undermined trust and confidence – Respondent suspended applicant – Investigation commenced – Respondent questioned other staff members on how obtained information about campaigns and whether applicant told employees how to write testimonials – Authority noted interviews should have directly addressed incident involving P at meeting, suspicion linked with applicant’s performance review, allegation applicant had solicited staff testimonials and incited other employees – Authority found interview answers did not disclose any possible misconduct - Respondent sent applicant letter including allegations of undermining and sabotaging marketing campaigns and staff training, disclosing confidential information to staff and encouraging staff to undermine campaign – Letter referred to possible dismissal if applicant found guilty of misconduct - Authority found interviews not adequate basis for respondent’s letter - Applicant’s representative raised personal grievances with respondent and claimed disciplinary investigation unfair – Respondent requested applicant attend meeting – Applicant claimed entitled to refuse to participate in flawed investigation as predetermined outcome – Respondent claimed applicant failed to refute evidence – Claimed applicant had abandoned employment and casual employee, not entitled to further employment and confirmed termination – Authority found employment agreement permitted suspension when employee allegedly harassing or bullying employees, but excluded ability to suspend for other misconduct – Noted applicant not given opportunity to be heard before suspension and no imminent danger or misuse of confidential information – Found applicant’s disclosures not level of confidentiality to warrant dismissal – Found applicant disloyal, but respondent relied on snippets of allegations insufficient to justify misconduct finding – Found no reasonable grounds for respondent’s conclusion applicant incited employees to challenge campaigns or management decisions – Found allegation applicant acted inappropriately towards other employees not raised by employee involved and based on vague assumptions - Dismissal unjustified – Found suspension caused unjustified disadvantage - REMEDIES – No contributory conduct to unjustified suspension - $3,000 compensation appropriate – 75 percent contributory conduct to unjustified dismissal - Found applicant not entitled to refuse to respond to allegations and guilty of disloyal conduct – Found no grounds to support applicant’s allegation decision predetermined - $10,417 reimbursement of lost wages and $2,000 compensation appropriate - UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by disciplinary investigation – Authority found first suspension letter so vague, applicant had reason to doubt investigation’s purpose – Found however concerns were later explained in more detail and disciplinary process for genuine reasons – Found investigation not commenced because respondent unable to pressure applicant to resign or be demoted – No unjustified disadvantage - COUNTER CLAIM – DAMAGES – Respondent claimed entitled to damages – Claimed applicant caused loss to respondent as failed to meet performance targets – Counter claim previously adjourned as no evidence filed in support by respondent – Authority noted respondent should carefully consider whether to proceed with counterclaim - Respondent to inform Authority whether wished to proceed – COSTS – Respondent to pay applicant $3,500 contribution towards costs - Telemarketing Manager |
| Result | Applications granted (unjustified dismissal)(unjustified disadvantage) ; Reimbursement of lost wages ($41,667 reduced to $10,417) ; Compensation for humiliation etc ($3,000)(unjustified disadvantage) ($2,000)(unjustified dismissal) ; Application dismissed (unjustified disadvantage) ; Costs in favour of applicant ($3,500) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s114;ERA s114(1);ERA s148 |
| Cases Cited | B & D Doors Limited v Hamilton (2007) 5 NZELR 69;Graham v Airways Corporation of New Zealand [2005] ERNZ 587;PBO Ltd (formerly Rush Security Ltd) v da Cruz [2005] ERNZ 808;Power Beat International Ltd v Andersen [2001] ERNZ 114;Radius Residential Care Ltd v McLeay [2010] ERNZ 371;Williams v The Warehouse Ltd (2008) 6 NZELR 32 |
| Number of Pages | 19 |
| PDF File Link: | 2011_NZERA_Auckland_205.pdf [pdf 53 KB] |