| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 138 |
| Determination date | 06 June 2012 |
| Member | K J Anderson |
| Representation | G Pollak ; C T Patterson, A Reid |
| Location | Auckland |
| Parties | O v N Ltd |
| Summary | INJUNCTION – Applicant sought interim reinstatement – Applicant claimed unjustifiably dismissed by respondent – Authority found allegations against applicant far from proven and applicant had arguable case of reinstatement – Found detriment to applicant more likely longer applicant away from clients and balance of convenience in favour of interim reinstatement – Found overall justice of case favoured interim reinstatement – Application for interim reinstatement granted – Sales executive |
| Abstract | Applicant employed by respondent as sales executive. Applicant sought interim reinstatement. Applicant claimed unjustifiably dismissed by respondent. Applicant received award from respondent at awards event. Applicant presented with award by respondent’s managing director (“G”) and pair posed for photograph. G claimed applicant cupped G’s buttock. Applicant accepted may have touched G’s buttock but claimed touching unintentional. Respondent offered to continue employing applicant on reduced salary if applicant accepted conditions. Applicant did not accept offer. Applicant dismissed. Respondent claimed reinstating applicant could cause respondent to breach obligations to provide safe workplace and would send message to respondent’s employees that sexual harassment acceptable.;AUTHORITY FOUND –;INJUNCTION: Authority recalled earlier determination and reissued determination with order prohibiting publication of parties’ identities. Respondent’s interpretation of incident not corroborated by video footage of incident. G’s claim of feeling angry, disrespected and intimidated not supported by G’s demeanour following incident. Applicant’s long and impeccable employment record and respondent’s willingness to continue employing applicant if applicant accepted conditions meant no reason for respondent to lose trust and confidence in applicant before substantive hearing. Arguable case for reinstatement. Applicant’s long service without hint of misconduct meant unlikely any risk of misconduct in future. Evidence suggested limited knowledge by others of alleged incident and little inconvenience to respondent if applicant reinstated. Applicant’s alleged behaviour far from proven. No financial hardship to applicant if not reinstated and adequate remedies available if applicant successful at substantive hearing. Balance of convenience finely balanced but fact detriment to applicant more likely longer applicant away from client base determinative. Balance of convenience in favour of interim reinstatement. Overall justice of case in favour of interim reinstatement. Application for interim reinstatement granted. |
| Result | Application granted; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s103A;ERA s125;ERA s127;ERA s127(4);ERA s127(5);ERA Second Schedule cl10;ERA Second Schedule cl17 |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 93,999;Auckland District Health Board v X (No 1) [2005] ERNZ 487;N Ltd v O [2012] NZEmpC 76 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Auckland_138.pdf [pdf 79 KB] |