| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 463 |
| Hearing date | 30 Jun 2011 |
| Determination date | 26 October 2011 |
| Member | K J Anderson |
| Representation | J Peebles ; E Burke |
| Location | Hamilton |
| Parties | Martin v Easy Mind Waikato Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Applicant informed respondent director (“L”) that mother (“R”) set up company which carried on same business as respondent – R sent letters to advertise business – L claimed letters sent to educators who worked for respondent – L claimed R said given names of educators – R claimed L aggressive and demanding towards R about how R attained educators’ names – Applicant suspended – Applicant refused to allow L check memory stick taken from computer – Applicant invited to attend formal disciplinary meeting – L claimed applicant did not inform L of conflict of interest in timely manner as illustrated by email exchange with sister (“S”) – Applicant claimed at time sent email to S, R only discussed possibility of setting up business – Applicant claimed only told about decision to set up business a few days before told L – Applicant claimed S terminated childcare arrangement with respondent because wanted to support R’s enterprise – Authority found applicant had some difficulty responding to allegations about sending emails with attachments from personal email account to work email address – Respondent claimed conflict of interest existed and did not accept applicant did not know about conflict of interest until shortly before telling L – Respondent claimed applicant accessed work information from personal email account without authority to do so – Respondent accepted no evidence to prove information supplied to R – Respondent made additional allegations – Found respondent unable to show applicant deleted information from server – Applicant claimed did not make misrepresentation to respondent relating to CV - Applicant claimed emails sent during work time commonplace and suggestion applicant’s actions dishonest ludicrous – Found performance concerns could not be commented on – Applicant dismissed – Found open to respondent to interpret “own interest” in conflict of interest clause in employment agreement (“EA”) as including applicant’s close relationship with R and that R’s business competing with respondent – Found applicant obviously aware conflict of interest existed because notified L – Found probable R had to undertake substantial preparation for setting up business prior to when applicant notified L – Found email exchange with S indicated applicant had significant knowledge of R’s business plans before notified L – Respondent claimed applicant deliberately planned timing of notification of possible conflict to give R possible advantage – Found insufficient evidence to conclude applicant breached EA or was involved in serious misconduct – Found number of other matters taken into account in dismissing applicant – Found given totality of circumstantial evidence fair and reasonable employer would have dismissed applicant – Dismissal justified – Accounts Manager |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand v Hudson [2006] ERNZ 415;Air New Zealand v V [2009] ERNZ 185;Boyd v BHP New Zealand Steel Ltd unreported, Palmer J, 20 Dec 2001, AC 87/01;Chief Executive of the Ministry of Maori Development v Travers-Jones [2003] ERNZ 174;Northern Distribution Union v BP Oil NZ Ltd [1992] 3 ERNZ 483;R v Exall (1886) 176 ER 850 |
| Number of Pages | 20 |
| PDF File Link: | 2011_NZERA_Auckland_463.pdf [pdf 119 KB] |