ERA rules against worker's claim of unjustified dismissal
A former roofing salesman who was terminated for claiming commissions based on unconfirmed sales has lost his case of unjustified dismissal against his employer.
Leon Thompson was hired by Edwards & Hardy Hawkes Bay Limited (E&H) as a full-time permanent sales representative in November 2019, where he was tasked of selling a variety of roofing treatments to customers.
He had a base salary of $40,000, in addition to commission payments based on total net monthly sales, as heard by the Employment Relations Authority (ERA).
Commission was calculated on sales logged monthly and was paid on a tiered basis depending on the number of jobs sold. In cases of cancellation after a commission was paid, a deduction would be made from the next month's net sales.
Unconfirmed sales
The issue stems after Thompson's branch manager, Graeme Wedlake, launched an audit on the employee's sales after he logged sales that were well above expected, even for a high performer.
It came despite Wedlake warning Thompson beforehand to ensure that the jobs that he put through for commission were confirmed sales.
In his audit, Wedlake found that several contracts from Thompson were under-priced or cancelled jobs, despite company policy that discounts were not permitted without the branch manager's approval.
Thompson also admitted that he logged contracts that were made in the condition that he would return later to confirm the sale.
The roofing firm suspended Thompson in January 2021 while their investigation proceeded before he was later terminated in the same month.
According to E&H, Thompson's conduct was a "deliberate attempt to generate extra income through commissions."
Thompson's admission to increase sales by under-pricing was also considered by the organisation.
Fuel card dishonesty
In addition, E&H also considered the final warning it gave Thompson following his dishonesty over the company's fuel card, where the salesman was investigated for using it consistently higher than expected.
Thompson admitted that he was filling jerry cans with fuel for emergencies and would put them in his personal vehicle for personal use when he felt the fuel was getting old.
The warning, which was given two months before the sales controversy blew up, stated that the fuel dishonesty would be considered in case Thompson committed further breaches of conduct or performance in the next 12 months.
During Thompson's termination, E&H said the warning over the fuel card was considered, adding that the company had "now lost trust in him."
Thompson raised a personal grievance with E&H in February, before lodging an unjustified dismissal case to the ERA in September 2021.
ERA sides with E&H
The ERA took the side of E&H and concluded that the roofing firm was justified in its actions to terminate Thompson.
"In these circumstances I find that the decision to dismiss Mr. Thompson has been justified by E&H and the process that was followed to be fair and reasonable in the circumstances," ERA member Sarah Kennedy said in her decision.
The ERA said E&H was open to form its decision given Thompson's pattern regarding the contracts and the previous written warning for dishonesty over the fuel card.
The authority further ruled that Thompson was not treated unfairly during the company's investigation. It said that while it was always desirable to give employees more time to respond to employer's concerns, E&H's process defects were minor.
