Progressive forced to defend hopeless case

Frequently, the courts have to deal with weak claims. Every now and then, however, one comes along that makes you wonder what the party concerned was thinking.

In a recent case in the Employment Relations Authority, Allister Watson was employed as a divisional manager by Progressive Enterprises Ltd. On 9 February 2009, having accepted a position with Coles Group Ltd in Australia, he gave Progressive the two months notice required by his employment agreement.

As Coles is a competitor of Progressive's, his resignation led to a check by Progressive of his work computer and email system. This revealed that on several occasions in the days after he had accepted the job with Coles, but before he resigned, he had sent commercially sensitive documents to his home email address.

It also transpired that he had copied documents to a memory stick. He claimed that he had taken some documents because they were about him, and others to help him prepare reports and provide information to assist his team to manage his departure. This led to misconduct allegations against him.

There was then a dispute about access to a report thought to have been prepared by Progressive's loss adjustment officer. Progressive decided to go ahead and reach a decision on the misconduct allegations against Mr Watson, without waiting for this to be resolved. Perhaps not surprisingly, it rejected his explanations for taking the confidential information, and dismissed him without notice, thus cutting off the notice period he was working out (having already resigned).

Mr Watson then sued for unjustified dismissal. Bizarrely, he claimed interim reinstatement, notwithstanding that he would only be working for Progressive for a period of less than two months.

Interim reinstatement applications are generally decided by reference to affidavit evidence, in advance of the main witness hearing on whether the dismissal was justified.

Not surprisingly, the Employment Relations Authority turned down Mr Watson's request for interim reinstatement. There was no prospect of permanent reinstatement, and therefore there was not even an arguable case for interim reinstatement. While Mr Watson might be worried about how Coles would view his dismissal, that could best be resolved by a hearing as to whether the dismissal was justified. This did not require him to be reinstated.

Seeking reinstatement when you have already resigned is really pushing your luck. If Mr Watson was worried about what Coles would think, perhaps he would have been better off keeping quiet about the situation, rather than asking for an unlikely remedy.

 

Greg Cain

Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.

 

 

 

Photo: Greg Bowker