Ex-Microsoft employee challenges ERA ruling

Former employee seeks redress in the Employment Court

Former Microsoft employee Alex Broughton is continuing with legal proceedings against the company, despite losing an Employment Relations Authority case, heard in March this year, regarding his redundancy in early 2010.

The ERA ruled in March that Broughton’s redundancy from the role of Citizenship Lead at Microsoft New Zealand in January 2010 was carried out properly, concluding: “MSNZ’s actions and how it acted were what a fair and reasonable employer would have done in all of the circumstances.”

Following the ERA ruling, Broughton filed a challenge to the authority’s decision with the Employment Court, re-iterating claims in the ERA case that Microsoft breached the terms of its employment contract with him during the redundancy process. The court gave an interlocutory ruling on five claims made by Broughton in a judgement issued on August 10.

Broughton alleged in the Employment Court that former Microsoft New Zealand country manager Kevin Ackhurst breached the terms of Broughton’s employment contract by engaging in correspondence with Microsoft executives in Australia and Singapore, and with Microsoft’s New Zealand human resources manager, without discussing the matter with Broughton.

In the current Employment Court challenge Broughton requested that Microsoft produce “all email messages, attachments to email messages and notes of telephone discussions” created between June 18 2009 and December 11 that year, between Ackhurst, the then Singapore-based executive, the NZ HR manager “and any other person in the regional office of Microsoft in Singapore” and, likewise, the Microsoft Australia office.

Microsoft objected to that request, on the grounds that it was too broad.

The Employment Court ruled that Microsoft “has caused its documentary records relevant to the matters at issue in this case to be searched for, and that such records as have been identified by those searches have been disclosed to the plaintiff.

“The classes of persons nominated by the plaintiff are too broad and should be confined to those whose records have been searched and, if relevant, disclosed.

“[Broughton’s] challenge to [Microsoft’s] objection is not upheld.”

Microsoft also objected to a request by Broughton that it produce what it described as “a memorandum prepared by the [Microsoft’s] then-HR director, Sally Doherty, on or about 28 September 2009 on the grounds that its subject to professional legal privilege.”

Broughton’s counsel challenged the privileged status of the document on the grounds that Microsoft had not established that its then-legal counsel in New Zealand, Waldo Kuipers (who is now corporate affairs manager) wasn’t a practicing lawyer in New Zealand.

Microsoft subsequently produced proof that Kuipers held a New Zealand practicing certificate.

Broughton also objected to claims of legal professional privilege by Microsoft over further documents he sought.

He also sought some work diaries that Kevin Ackhurst had written notes in during 2009. Employment Court chief judge GL Colgan noted in the judgment that Microsoft “says that these diaries were lost either in Sydney, Australia, before Mr Ackhurst’s transfer within Microsoft to Singapore, or, alternatively, with his possessions in transit to his new posting.”

Colgan suggested Ackhurst provide an affidavit explaining where these diaries are. In the final matter aired at the Employment Court, Broughton alleged Microsoft had not provided complete discovery because it had provided some supplementary disclosed material after the initial disclosed material.

However, Colgan noted: “That is not unusual in litigation and shows that [Microsoft] is alive to the ongoing and dynamic nature of the disclosure process.

“I am not satisfied from [Broughton’s] claims that [Microsoft] has not met its disclosure obligations.”

Colgan’s ruling was issued to Microsoft and Broughton on August 10, in order to resolve the issues before a judicial settlement conference scheduled for August 18-19.

However, that conference has since been cancelled and the case remains before the court.

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