04 Aug 2014
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IBM NZ worker loses constructive dismissal appeal

A former IBM New Zealand worker has lost his claim of constructive dismissal against the tech giant, as revealed by the Employment Relations Authority in Auckland last week.

Employed by the Kiwi division of the company for over 17 years until his resignation in August 2013, the employee claimed he was “unjustifiably constructively dismissed” by IBM, who he alleged, wanted him out of the company.

In a further blow to the tech veteran, the ERA order him to instead pay $4000 for breaching his employment conditions in a counter-claim by the company.

According to the ERA filing, he had mistreated his company laptop, and following an examination of the contents ERA reported that the device contained:

“materials including personal images, illegally downloaded movies, music, unauthorised software and recordings of private and confidential conversations between IBM employees.”

While the Judge in the case, Eleanor Robinson, acknowledged in her verdict that his images were personal in nature and “may have been placed there inadvertently and may not have offended anyone at IBM during the course of his employment”, he still breached the company’s rules with regards to physical properties such as laptops despite the employee stating the images were in a deleted state since 2011.

“[Laptops] should only be used to conduct IBM business or for purposes authorised IBM management”, the ERA report read.

The ERA also concluded that he had retained confidential IBM material after his departure, leading to a further breach of his employment contract.

The employee claims however that this material was in fact with his lawyer and held under an irrevocable authority as evidence - meaning he did not personally have any confidential IBM material.

“The secret recording of the meetings with the management team at IBM I find to have been deliberate and sustained over a period of time, and not to have been acting in good faith,” added Robinson.

In his defence, Robinson heard how the recorded meetings with his manager were only taken after he sighted a document stating "this means we elongate his time in the business" which subsequently lead him to feeling at risk – leading to him recording sessions with management as he felt threatened. No meetings had been taped prior to this sighting.

IBM accused him of possessing a laptop hard drive which contained a copy of the contents of his IBM laptop, while also retaining a disc of confidential material until May of this year - disobeying his contractual obligation to return such documents to the company following his departure.

Again, the employee stated the material was in the hands of his lawyers.


He claimed that his direct manager at the time, Kate Tulp, had discussed both his performance and requests for a salary increase with fellow IBM managers, and during an email conversation which he viewed on her laptop, he had came to the conclusion that management “wanted him out of the business.”

According to the ERA, with regards to offering him a salary increase, Tulp wrote: “This will mean we elongate his time in the business though.”

While acknowledging that he was aware of Tulp’s concerns over his performance, which she described as “unacceptably low for any seller at IBM”, he believes he was forced out of the company and that management had essentially made their mind up above his career path.

In giving evidence at the hearing, the employee told Robinson that he was one of only two sales reps to have made target during the sales half, and that he was in fact at 110% of target.

Ruling against his claims of constructive dismissal however, Robinson concluded that he “voluntarily resigned from his employment with IBM having received an offer of alternative employment on 8 August 2014 and that he was not unjustifiably constructively dismissed.”

In a small victory for him, the ERA ordered IBM to pay $500 in the respect of the breach of good faith in not communicating in a timely manner the outcome of the annual salary review.

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