IBM high-flier loses dismissal claim

01:20, Aug 21 2014

A former high-flying IBM salesman has lost his claim against the technology company for constructive dismissal.

In a determination last week, the Employment Relations Authority (ERA) in Auckland ordered Andrew Simpson to pay $4000 to IBM after upholding the company's counter-claim that Simpson had breached his employment conditions on several counts.

These included retaining IBM material after he left the firm and recording conversations without consent. The ERA also found he had breached IBM guidelines by storing non-work material.

But the ERA also ordered IBM to pay $500 to Simpson as it found the company had failed to communicate the result of a salary review to him in a timely manner.

Simpson had been employed by IBM in various roles for more than 17 years and had been promoted to a senior sales position in 2010, the ERA decision said.

Late in 2012 Simpson applied for a salary increase to bring it into line with his counterparts in Australia.


Two IBM managers had supported Simpson's application on the grounds that he was a "consistent high performer".

But Kate Tulp, who took over as Simpson's direct manager in April last year, said she had become concerned after she had received a "wide array" of unsolicited negative feedback on his style and performance.

Her thoughts came five months after a business case had been prepared to increase Simpson's salary.

It said: "Consistent high performer with respect to his peers. 120 per cent of target in 1h12. Andrew is the only base growth seller in NZ so is required to operate at a higher level than should be expected of band 8. Andrew has formed excellent client relationships..."

In mid-June in 2013 Tulp had an email conversation with another IBM manager during which they had discussed Simpson's performance. Simpson said he had viewed the conversation on Tulp's laptop a few days later.

He had taken a photo on his mobile phone as he had been shocked by what he had seen, including the words: "This will mean we elongate his time in the business though."

ERA member Eleanor Robinson said in her decision: "His understanding from what he had seen, had been that IBM wanted him out of the business and that it was seeking to avoid elongating his time in the business."

At a meeting with Tulp in August 2013, Simpson produced the photo he had taken earlier of her electronic conversation, but he refused to say how it had been obtained.

Worried that her laptop may have been accessed by Simpson without authorisation, Tulp followed a standard IBM procedure for a potential security breach. Simpson's email access was suspended, his building and car parking access were revoked and he was asked to surrender his work laptop.

Robinson concluded that his behaviour was a breach of the [business conduct guidelines] involving IBM's core values around asset use, which included physical property such as a laptop.

"[Laptops] 'should only be used to conduct IBM business or for purposes authorised by IBM management'," Robinson said.

Costs were reserved.

This story has been edited after a further reading of the ERA decision.