The board said Clarke entered into an agreement to purchase a plot of land without prior approval from the board. He was given the opportunity to resign first, but chose not to take it, later launching a personal grievance.
Early this year, Clarke and the Nelson branch board chairman Andrew Riordan visited the property. The board later had “an initial discussion about the potential purchase of [the property].”
In late February, Clarke emailed the board and said he had entered into a conditional offer for the property. He stressed the charity could pull out of the agreement at any time, but the offer was required to undertake adequate due diligence.
Clarke told the board should the offer be accepted, a full business case would be developed for the board to make a final decision.
Concerns were then raised by Riordan. It is “common ground” between the parties that Riordan was not pleased, and that Clarke made an offer to ring the real estate agent and rescind the offer. Riordan did not agree to that step, the decision says, although the reasons why are untested.
Clarke provided copies of legal advice showing the due diligence clause allowed the charity to pull out of the deal, without a requirement to give reasons. Riordan rang the lawyer, who confirmed the advice.
There were further conversations over following days, although most of the facts of these conversations are yet to be tested by the tribunal and aren’t yet established.
On March 11, Riordan wrote to Clarke and said the board intended on meeting to discuss whether he acted outside of his delegations. If they reached that view, Riordan said, “I need to forewarn you that disciplinary proceedings are likely to follow.”
Clarke remained firm that the agreement was not a document that guaranteed purchase of the property. He said the agreement was no different to how the charity purchased an earlier property.
Clarke later conceded that the earlier property agreement did have sign-off from the board, while the agreement at the centre of this dispute didn’t.
“If seeking approval first was the Board’s expectation I absolutely apologise, and that I will never do it again,” Clarke said.
In the following days, the offer to purchase the property was withdrawn. What led to that decision is untested and not detailed in the decision.
A disciplinary meeting was held later that day. No notes from the meeting were provided to the authority.
On March 16, the board emailed Clarke and said signing the agreement without board approval amounted to serious misconduct and was reckless. It said Clarke didn’t accept the gravity of the situation.
The board decided Clarke couldn’t remain, but gave him the opportunity to resign instead of being fired.
On March 21, Clarke lodged a personal grievance with the board. It was received by Riordan, who “took from this that [Mr Clarke] did not intend to resign.” Clarke was formally fired later that day.
Clarke took his claim to the Employment Relations Authority, seeking an order for interim reinstatement.
The major consideration when ordering reinstratement is whether or not the applicant has an arguable case. The extent of that test is whether or not the claim was frivolous or vexatious, and the substance of his claims.
The authority found the case was “strongly arguable”.
When HFH came to the conclusion Clarke wasn’t taking responsibility for his actions, “it is strongly arguable that Mr Clarke was treated unfairly because these conclusions were at the least never put to Mr Clarke,” the authority ruled.
Given HFH’s conclusion it could not trust Clarke, the authority further said it was strongly arguable that Clarke was not given a reasonable time to respond, and that there were defects in the disciplinary process.
“There is no documentation showing that HFH raised its concerns about a lack of trust before the [disciplinary] meeting.”
When it came to reinstatement, Clarke said his relationship with staff and the board wasn’t irreparably damaged. HFH disagreed, saying further proceedings with the authority would make employment impractical.
The authority said HFH’s argument was not persuasive.
While stressing the case is yet untested, the decision said on the face of it, the merits of the case lay with Clarke.
“What he did was at worst a single error of judgment not warranting a decision that the board could no longer trust him.”
The authority ordered interim reinstatement from May 31. The substantive hearing will be heard at a later date.
Riordan told NZME that with the matter still in progress the organisation has nothing more to add. Clarke was approached for comment via his lawyer.
