A changeover from one general manager to another and misunderstandings about an arrangement under which a senior software developer was permitted to undertake non-work related projects, is behind a decision by the Employment Relations Authority (ERA) that has seen the developer awarded $9500 for hurt and humiliation.
The award was made in a determination by the ERA on March 31, following an investigation by the authority.
Paul Gordon, a former senior developer and analyst with Student Management Software Solutions Ltd, filed a personal grievance against his former employer in May 2009 after being dismissed the previous month.
The two parties went to mediation in July but were unable to resolve the issues, so Gordon filed a statement of problem with the ERA in October.
The reason given for Gordon’s dismissal was that he undertook secondary employment while working for SMSS, in breach of the terms of his employment agreement.
Among the reasons cited by SMSS during the ERA’s investigation was that Gordon had been “undertaking substantial tendering work for his own company in work time and using [SMSS’] systems and equipment”; and “using [SMSS’] software code for his own company’s work”.
However, during the investigation, the ERA heard evidence from Gordon’s former manager at SMSS, James Roberts, that Gordon’s work projects outside SMSS were “known to him, and were not only condoned but strongly encouraged by him”.
Also in dispute was a data validation tool, which SMSS alleged Gordon had “misappropriated” the code of. However, the ERA heard evidence that Roberts had “gifted” the code to Gordon.
ERA member Denis Asher noted in his determination, delivered on March 31 after the investigation, that Roberts successor as managing director of SMSS, Amanda Santos-Trew, didn’t accept that Roberts had encouraged Gordon to undertake secondary employment.
Instead, SMSS’ inquiries were focused on the possibility it perceived that Gordon, along with some other employees, were planning to leave SMSS and take company intellectual property with them.
Gordon sought lost wages and bonuses from the time he was dismissed and produced “evidence of his unsuccessful attempts to find employment”. He was awarded lost income from the time of his dismissal to the date of the ERA’s investigation, less his earnings during that time.
He was also awarded $10,000 for hurt and humiliation, minus five percent.
The five percent was taken off as Gordon admitted accessing the SMSS network after being instructed not to.
Asher regarded that as not amounting to serious misconduct, but said it was “foolish” and reduced the $10,000 payout by five percent in response.
As to the claim by SMSS that the data validation tool Gordon had worked on while employed there was company property; “I am satisfied from the evidence of Mr Gordon and Mr Roberts that the former produced it in his own time via tools and components SMSS did not possess, for the latter’s benefit.
“I am also satisfied that, because of and consistent with the relationship, Mr Roberts ‘gifted’ the tool to Mr Gordon.”
Nonetheless, “I record here Mr Gordon’s undertaking to provide the tool to SMSS.
“Because of the effective merging of Mr Gordon’s secondary activities with SMSS’ interests it is appropriate, in good faith as it entails no financial cost to him, that he do so.”