Summary of argument
To the authority file no 5315212 Attn K J Anderson
As I am a litigant representing my self, my understanding of jurisdictional issues is limited by my basic knowledge of the law and my research thus I am presenting same as a summary of argument
To my understanding
The Employment Relations Act 2000 section 187 gives jurisdiction to hear all matters relating to employment disputes
That Jurisdiction covers the following areas: among others
• To review how various persons have exercised, or refused, or proposed, or purported to exercise, any of their powers under the Employment Relations Act 2000
• When people are alleged to have committed offences under the Employment Relations Act 2000
• Where proceedings are referred or removed to the Court by the Employment Relations Authority
It is under theses areas I wish to address the ERA
In summary
My allegations of fraud and deception against the staff of New Zealand Telecom presents a direct challenge (dependant on its out come) to the extent to which Telecom deserves and holds the respect of not only its employees but effects also its image as company in the commercial public arena with regard to its integrity .
It especially holds a direct accountability reflected by its actions to the regard it holds for such basic things as human rights, employment law and its integrity when dealing with same and other public entities such as the privacy commission (to whom it was happy to provide false evidence as referred to in previous submissions as well as in this submission)
My concerns have over time addressed a number of questions
1 / Was my disciplinary process managed correctly in accordance with the relevant laws and Telecoms own code of conduct. Were the correct procedures followed i.e. were my concerns expressed ever acted upon; or even followed up?
2/ why were meeting notes incomplete.
Having regard to the information in the documents at issue I have concluded that they each reflected an element of choice about what was recorded and how the record was expressed. The documents themselves would satisfy me that in their preparation there was sufficient exercise of skill, selection, effort and or judgment to come within the rational for further concerns of fraud and deception by “willful neglect” and / or “willful omissions”
It is my contention that there was a conspiracy by all parties to be “wilfully negligent “and to “lie in unison” this is supported by the complete ignoring of proper process and perhaps just plain old common sense in not requesting/asking for, a copy of a customer complaint letter; which formed part of the displainary action against me: now known to be a fraudulent.
In fact was there a conspiracy to deceive amongst various officers within management and HR; as they appeared to be working in concert with each other? This is exemplified by the apparent inability of all telecom participants failure to apply due diligence to the letter that supposedly came from an intellectually handicap girl accusing me of being rude and condescending.
3/ In relation to my case of dismissal ,where the employment laws policies and systems for managing employment issues appropriately and effectively applied i.e. “good faith”
4/ In relation to my case were Telecoms own expectations of appropriate conduct and behaviour clear and up held ,it is my contention they did not
Codes of conduct.
Telecom has clear expectations of all staff for appropriate conduct and behaviour these are highlighted in all employment agreements and are available to all staff on the company intranet .They outline explicit expectations about fulfilling lawful obligations with professional ism and integrity, and performing duties to the best of ones ability while respecting the rights of others and avoiding behaviour that might impair ones effectiveness to effect same.
5/ What are the implications from this situation for the company’s practices and policies relating to standards and behaviours expected of them with a firm regard to the way their employees are treated under employment law ,not only in my own treatment .but in the treatment of all employees . Only a full and extensive audit can reveal what is covertly going on , firstly applied to my own case and if they is sufficient evidence of abuse of process etc progressively audit all other cases a required
I failed in my last attempt to prove a constructive dismissal I ask that consideration again be given based on the following precepts
There are three situations where a constructive dismissal might occur:
(i) where the employee was given a choice of resignation or dismissal;
(ii) where the employer had followed a course of conduct with the deliberate and dominant purpose of coercing an employee to resign; micromanaging few other employees, if any where required to work to this exacting standard, which by its very nature is unachievable from the outset, you are setup for failure. Telecoms admission to me, that they where employing it, signifies both their guilt and their intent
(iii) Where a breach of duty by the employer led a worker to resign. Good faith
Mutual obligations of trust and confidence
All of those three situations may have applied in my case. Certainly 2 & 3
Confidentiality clauses prevent confirmation of the first
In considering whether there was a breach of the implied mutual obligations of trust and confidence or the overall obligation of good faith, it was necessary to look at whether the employer’s conduct as a whole judged reasonably and sensibly, was such, that the defendant should not have been expected to have put up with it.
In reality it was micro-management disguised as performance management a severe case of work place bullying in that
A / It was a deliberate act
Requested and organized by senior management in collusion with HR (refer previous submission HR and senior admitted twice to micro management)
Conspiracy to deceive /working in concert with each other/using privacy act to defeat Era requirements i.e. i was refused access to all forms of data available that compared my outputs against my peers quoting” peers privacy issues” in so doing preventing me access to information that would clearly refute their nefarious claims
B/ It was disrespectful
C/ It was repeated on a daily basis for approximately 8 months
This was exemplified by a email sighted by me where the national manager comments to the general manager that my immediate manager and my site manager “had a nice rhythm going on “ this in response to an enquiry as to how the disciplinary action against me was proceeding
Where a breach of duty by the employer led a worker to resign.
Their breech of duty where outlined in my last submission
References AEC 81/92 AA199/08 may have, in part , some relevance
In closing
I may not have a clear understanding of issues of jurisdiction and other concepts of the legal frame work with regard to employment law and if I have wasted the authority time with this further submission I apologise.
But I am moving forward on this one simple fact
I cannot understand how Telecom can get away with dismissing me on fraudulent evidence
Fraud in my view is an indictable offense thus again in my view all participants are liable to a term of imprisonment
In my view the act of fraud could be established by proof of the following
1 the prohibited act being one of deceit, falsehood or some other fraudulent means and
2 deprivation caused by the prohibited act which may consist of actual loss or the placing of the victim pecuniary interest at risk I lost my job hence my income
Proof of deceit or falsehood is sufficient to establish the actus reus of fraud – no other proof of dishonest action is needed;
- the fundamental question in determining the actus reus of “other fraudulent means” is whether the means used to carry out the alleged fraud can be characterized as dishonest
- Dishonesty is determined by applying the standard of a reasonable person – whether a reasonable person would stigmatize what was done as dishonest;
- while dishonesty is difficult to define with precision, it connotes an underhanded design which has the effect, or which engenders the risk, of depriving others of what is theirs – it has, at its heart, the wrongful use of something in which another person has an interest, in such a manner that this other’s interest is extinguished or put at risk;
Use is “wrongful” in this context if it constitutes conduct that reasonable, decent persons would consider dishonest and unscrupulous –
The element of deprivation is satisfied¬ on proof of detriment, prejudice, or risk of prejudice to the economic interests of the victim,
One of my primary objectives in bringing this case to the ERA attention the fact my good name was impugned
If not investigated, and proven to the fullest extent these allegations seriously undermine the integrity of myself and my good name, it reflects directly on my self ,and others perception of my self , built on close to forty years service of being honest and a man of good character within the company .
It becomes a pervasive form of defamation indeed published by staff in public arenas such Facebook ‘’that I left under a cloud “This can be substantiated by a witness if required as he rebutted the allegation in my defence I left and the confidentially of the mediation left me no way to explain to my peers the reason
It completely contradicted my own sense of ethical behaviour .I was quite frankly stunned close to forty years service came to this .unbelievable
Thus their actions mean “Telecom” and the participants no longer have my confidence or trust
My dismissal started with a lie, over time I have caught ALL participants lying to me so why I am not surprised that the end it all with more lies .this time to the Privacy Commissioner. Please refer attachment Sarah doc
I am resigned to the fact that if my submissions are accepted and my case is won .that an appeal to the employment court is inevitable as will be the rush to the shredders
The first is their right and to be expected. The latter I lack the means to control
With relation to respondents submission on preliminary matters 2011-03-31
In summary telecom is a large and complex organisation with many facets across the whole industry .over the course of my long career and in an effort to avoid redundancy, I have successfully moved across the industry a number of times
And successfully retrained myself to provide exemplary service in my new roles assisted by my wide breath of knowledge I could fit the disparate parts together more ably then most
Without breaching confidentially, the outcome of the mediation allowed the option of doing the same, finding another facet with in telecom that would suit my strengths
I duly applied for numerous jobs, only to be unsuccessful in all. I emailed telecom and alluded to my suspicions. The outcome of that enquiry was strongly worded responses indicating if I proceeded down that path that I would be meet with very strong resistance
My immediate thoughts where Hamlet act 3 scene 2 “the lady doth protest too much “
My question was answered
I was unable to gain confirmation of anything untoward until I received documents, under a request to the privacy commission a copy of the email referred to was submitted in my previous submissions
Less than two weeks after my mediation Hannah Sullivan had requested my file be stamped do” not re-employ”
This action effectively black listed me with in Telecom as well as the industry, as surely as all roads lead to Rome all Telecom wires lead to Telecom premises so if having succeeded in gaining employment to companies involved in the industry contracted to Telecom the minute I applied for access to these buildings , a requirement of the job , this notation would have negated my endeavours
Thus they have blacklisted me if I had been made aware of this manoeuvre during the mediation .it was obviously in their minds , perhaps a lack of “good faith” and a mood of evil intent prevented them from mentioning it . The outcome of the mediation may have taken on a different light
If not a black listing then it is certainly a de facto restraint of trade
“No man can be prevented from earning a wage according to his craft”
This has been my craft for close to forty years I know no other
In my simplistic view, a mediation conference serves to invite parties to reach a mutual agreement, in an attempt to prevent future legal action.
Natural justice would dictate that matters should be addressed on facts in evidence; application of good faith should ensure that.
Disciplining on a document (complaint letter) that is nonexistent taints both the process and the outcome, and prejudices my human rights.
As does undisclosed intent as described above, it appears timing is critical.
Procedurally this must be in error.
"deceit which avoids the contract need not be by means of misrepresentations in words it exists where the party who obtains the consent does so by means of concealing or omitting to state material facts, with intent to deceive, by reason of which omission or concealment the other party was induced to give a consent which he would not otherwise have given....
"[I]t is based upon the proposition that, under all the circumstances of the case, it was the duty of the party who obtained the consent, acting in good faith, to have disclosed the facts which he concealed."
1 In the event the authority dismisses the respondent’s submissions the applicant seeks costs
2 If any/or all of the participants have breeched the law that the authority holds them accountable under the law
Paul Evans-McLeod
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