| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 331 |
| Hearing date | 13 Jun 2011 |
| Determination date | 26 July 2011 |
| Member | V Campbell |
| Representation | R Harrison ; A Gallagher |
| Location | Auckland |
| Parties | Borrill v Elite Fitness Equipment Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed lost trust and confidence in applicant and applicant in breach of employment agreement – Applicant purchased gym in same locale as respondent – Applicant purchased equipment for gym from respondent – Applicant advised by respondent Finance Manager not to uplift equipment until funds had cleared – Applicant ignored instruction and uplifted equipment – Applicant advised respondent Managing Director (“B”) that purchased gym and no intention of ending employment with respondent – B sent letter to applicant setting out concerns that purchased gym and equipment – B advised applicant that if concerns remained after meeting dismissal was possibility and invited B to bring representation – Applicant told B committed and loyal to respondent – B discovered emails in which applicant sought to draw customers and staff away from respondent and considered role dead end – B claimed failed to be immediately notified of potential conflict by applicant despite applicant’s awareness of requirement – Applicant claimed deal to purchase gym concluded quickly – B discovered emails showing deal took many months – B concluded that termination possibility and offered applicant opportunity to add further comment before final decision – B considered applicant’s responses and terminated applicant’s employment – Authority found applicant in conflict with obligations under employment agreement – Found applicant’s inconsistent and misleading responses to respondent’s enquiries serious enough to warrant summary dismissal – Found B undertook fair process – Dismissal justified – ARREARS OF COMMISSION – Applicant claimed owed $800 commission payments – Respondent claimed parties agreed on payment of commission – Found parties resolved issue of outstanding commission payments – No arrears of commission – COUNTERCLAIM – GOOD FAITH – Respondent claimed applicant in breach of obligations of good faith as responses to B regarding purchase of gym and equipment misleading and deceptive – Found applicant acted deliberately and actions serious and sustained – $2,000 penalty appropriate – Commercial Manager |
| Result | Application dismissed (unjustified dismissal) (arrears of commission) ; Application granted (counterclaim) ; Penalty ($2,000)(Payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4A;Legal Services Act 2000 s40(2) |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Auckland_331.pdf [pdf 30 KB] |