A former partner of a big Kiwi law firm who claimed he was unfairly disadvantaged after receiving a written warning for allegedly inappropriate behaviour towards an employee has lost his employment case.

The former partner Richard Dean Palmer, known as Dean Palmer, claimed to the Employment Relations Authority (ERA) that he was unfairly disadvantaged by his former employer Duncan Cotterill following allegations of inappropriate behaviour towards young employees, including allegedly touching female staff and frequently taking women out for coffee and dinner, and emails containing "sexual innuendos".

Palmer, according to the ERA, was employed by Duncan Cotterill as a consultant in 2015. Prior to that he had been a partner in the firm for around 20 years until he left in 2009 to pursue other professional opportunities.

The understanding by both parties when he returned was that he would finish up working for the company when he retired.

Advertisement

In May 2017 the then chief executive of Duncan Cotterill, Terry McLaughlin, and chair Richard Smith had an informal discussion with Palmer initially about his bonus.

Once that had been discussed the pair raised some "concerns" about his behaviour "which had arisen from observations made by various partners".

Behavioural issues were raised, including allegations of long lunches, a suggestion of touching female staff and an allegation that he had a habit of taking staff out for coffee and lunches, and that typically involved young female staff, the decision outlines.

There was evidence that over a two-month period ending July that year, Palmer sent a junior staffer, whose name is suppressed, a series of emails suggesting dates for coffee and dinner.

The ERA heard that some of the language used by Palmer "was suggestive or contained sexual innuendo" and "sheer repetitive nature of the email requests was regarded as an exacerbating factor as was the power imbalance between Mr Palmer and the complainant".

Palmer alleges he suffered a personal grievance because his employer gave him a final written warning, which he claimed was unjustified and caused him disadvantage.

Duncan Cotterill admits the warning caused Palmer to be disadvantaged but believed its actions were justified.

"The apparent inability of Mr Palmer to grasp the seriousness of the situation appears to have been a further motivating factor for Duncan Cotterill; Mr Palmer did not accept the suggestion of a power imbalance and labelled that as "political correctness" and the firm's position was that Mr Palmer's response to the allegations was "aggressive"," ERA member James Crichton outlined in the decision.

The woman involved forwarded on the string of emails from Palmer to colleagues and told them the emails made her feel uncomfortable. She then provided the email trail to HR in advance of her departure from the company.

At her exit interview she outlined her concerns in more detail, including asking the firm to tend to the matter "in a serious way". The ERA heard the word complaint, however, was never used.

On August 2017, a letter was written to Palmer which raised concerns about the emails and there was an investigative processed followed by the firm. Duncan Cotterill met with Palmer to seek an explanation then later that month he was issued a final warning letter.

In the ERA's decision, Crichton said he was satisfied Duncan Cotterill conducted a proper inquiry and that a final written warning was the appropriate response to the conduct complained about.

Palmer claimed he meant no harm by such behaviour.

"This point is relevant because one of Mr Palmer's defences, which appears to have
been accepted by the employer, was that he meant no harm. The point here is that intention is irrelevant in circumstances such as this; what matters is how the behaviour is received by the other party," Crichton said.

"[The Complainant] said she found the behaviour "uncomfortable" and conveyed the impression that she could not simply decline Mr Palmer's numerous proposals because of the power imbalance, which the firm says Mr Palmer made light of."

Duncan Cotterill said it was necessary for it to issue the final written warning in order to seek to promote change in Palmer's behaviour. But Palmer said the investigation by the firm was insubstantial and unsatisfactory.

Crichton did not agree with Palmer.

"I accept the submission for Duncan Cotterill that the email trail speaks for itself. There is little investigation which the firm could conceivably undertake that would impact appropriately on the factual matrix it would need to decide the matter.

"Mr Palmer was given a proper opportunity to respond and the matters raised
by Mr Palmer were carefully considered by the employer."

Palmer's defense was that the email trail showed the two parties trying to get their diaries together. Palmer also claimed there was something wrong with the nature of the complaint the firm received in the first place.

But Crichton did not agree.

"What investigation was needed took place, and so a fair and reasonable employer in Duncan Cotterill's position could have concluded that a final written warning was an appropriate response to Mr Palmer's identified behaviour."

He concluded that he did not believe Palmer had any personal grievance.

Palmer declined to comment to the Herald.

In a statement, Duncan Cotterill chair Richard Smith said he was satisfied with the Employment Relations Authority outcome.

"Duncan Cotterill's Board and partnership is pleased with the outcome of the ERA hearing process. We place a high focus and level of importance on creating a safe and enjoyable work environment, where everyone can feel comfortable about coming to work," Smith said.