| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 439 |
| Hearing date | 1 Jul 2011 |
| Determination date | 10 October 2011 |
| Member | K J Anderson |
| Representation | D Erickson ; S Langton |
| Location | Auckland |
| Parties | Hawker v Team McMillan Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Serious misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondent sales director (“G”) informed applicant that needed to improve relationship with members of BMW Financial Services (“FS”) team and on providing information about creditworthiness of customers – G claimed applicant had not sought approval to structure finance of deal in unique way and misrepresented financial details of another deal – Applicant claimed deals were in accordance with usual practice – G claimed suspended applicant at meeting and explained reasons – Applicant claimed G never explained reasons for suspension – Authority preferred G’s evidence – Applicant attended meeting with G to explain deals – Applicant claimed respondent floor sales manager (“P”) was responsible for structuring finance of first deal – P claimed unaware of details of structure of finance – G explained that P did not have authority to structure finance which applicant knew – Applicant claimed had explained financial details of second deal in detail to G and respondent car sales manager (“M”) prior to approval – M claimed only involvement in deal was agreeing to price – Business executive for BMS FS (“A”) claimed unaware of how deal was structured – G claimed applicant had falsely invoiced financial details of deal – G concluded summary dismissal appropriate – G gave applicant opportunity to resign instead of dismissal so that applicant could obtain another job more easily – Applicant resigned – Authority found applicant’s departure was not voluntary as had applicant not resigned there was no doubt that summary dismissal would have resulted – Found applicant dismissed – Applicant claimed respondent’s investigation carried out with undue haste and applicant deprived of proper opportunity to consider matters and take advice – Applicant claimed did not have access to necessary records required to make thorough response to allegations – Found applicant given several options in regard to when meeting with G could take place – Found no evidence applicant required more time or was deprived of access to records – Applicant claimed respondent failed to discharge duty of good faith – Found general process followed by G was fair and reasonable – Applicant claimed not given proper opportunity to respond to issue around invoice which had significant bearing on decision to dismiss – Found invoice issue not a factor that weighed heavily on G’s mind and unlikely further explanation from applicant would have made difference to outcome – Found given importance of applicant’s role respondent entitled to treat applicant’s substantial misrepresentations in applications for finance as serious misconduct – Applicant claimed dismissal inappropriate because deals were complex and caused no loss to any party, misrepresentations of this nature were not unknown to G and G had consented to previous deals in past, respondent benefited from deals and G unfairly placed significant weight on deterioration of the relationship between respondent and BMW FS – Found actions of applicant in relation to two deals were considerably outside accepted parameters of what was acceptable to respondent and possibly legal framework of industry – Found G had not consented to similar deal in past – Found applicant’s conduct deeply impaired or was destructive to respondent’s trust and confidence – Dismissal justified – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent due to suspension – Found little to suggest anything unreasonable about suspension or that applicant was unjustifiably disadvantaged by action – Found given seriousness of allegations fair and reasonable employer would have suspended applicant – No disadvantage – Business Manager New Vehicles |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);ERA s103(1)(b);ERA s103A |
| Cases Cited | Air Nelson Ltd v C [2011] NZCA 488;Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372;BP Oil New Zealand Ltd v Northern Distribution Union [1992] 3 ERNZ 483;New Zealand (with exceptions) Food Processing IUOW v Unilever New Zealand Ltd (1990) ERNZ Sel Cas 582 |
| Number of Pages | 23 |
| PDF File Link: | 2011_NZERA_Auckland_439.pdf [pdf 126 KB] |