| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 257 |
| Hearing date | 17 Feb 2011 |
| Determination date | 17 June 2011 |
| Member | R Arthur |
| Representation | G Pollack ; S Cook, L Holden |
| Location | Auckland |
| Parties | Steel v Steelpipe Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant accidentally rang manager and manager listened to conversation applicant having with business associate (“S”) – Respondent claimed applicant inappropriately criticised respondent’s operations manager, quality of services and products, and made suggestions on how S could settle commercial dispute with respondent on terms less favourable than those sought by respondent – Applicant not authorised to discuss terms with S – Applicant suspended – Applicant attended disciplinary meeting and dismissed for serious misconduct – Authority satisfied manager accurately reported key points of telephone conversation overheard between applicant and S – Applicant claimed conversation not for business purposes and parties did not speak in respective representative capacities – Applicant claimed S initiated discussion on points of concerns and applicant acted properly in reassuring S – Applicant claimed had insufficient knowledge of commercial dispute to give S any information which would harm respondent’s business interests – Applicant claimed quality issues were legitimate concerns – Applicant accepted comments inappropriate but would be no ongoing negative effect on working relationship – Applicant claimed conduct did not come within criteria for serious misconduct – Found explanations would not have satisfied fair and reasonable employer and respondent entitled to conclude applicant’s actions in conversation were serious misconduct – Found conversation between applicant and S not personal or social – Found applicant advised S on tactics S could use to benefit at respondent’s cost – Found applicant risked causing real cost to respondent’s commercial interests – Found applicant’s conduct disloyal – Found breach of duty within scope of terms of employment agreement allowing for dismissal for serious misconduct – Found applicant breached duties of trust, confidence and fidelity – Found no significant procedural failures in how respondent conducted disciplinary investigation – Found suspension did not affect respondent’s ability to justify dismissal as for short duration on full pay – Found fair and reasonable to conclude applicant did not understand boundary between what could and could not be said in business dealings – Found considering alternatives to dismissal difficult because of applicant’s lack of insight about what applicant had done wrong – Found respondent’s option given to applicant to resign instead of being dismissed fair – Dismissal justified – Senior Sales Engineer |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s174 |
| Cases Cited | Big Save Furniture v Bridge [1994] 2 ERNZ 507;Kereopa v Go Bus Transport unreported, Travis J, 18 Sept 2009, AC 25A/09;PBO Limited v Da Cruz [2005] ERNZ 808;Tisco v Communication & Energy Workers Union [1993] 2 ERNZ 779 |
| Number of Pages | 11 |
| PDF File Link: | 2011_NZERA_Auckland_257.pdf [pdf 35 KB] |