| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 151 |
| Hearing date | 6 Jun 2012 |
| Determination date | 26 July 2012 |
| Member | D Appleton |
| Representation | A Oberndorfer ; R Brady |
| Location | Christchurch |
| Parties | Corbett v UDP Shopfitters Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Racial Harassment – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s failure to prevent bullying and abuse of applicant – Applicant claimed unjustifiably disadvantaged by respondent subjecting applicant to racial harassment – Applicant claimed unjustifiably disadvantaged by being assaulted by contractor – Applicant claimed unjustifiably dismissed by respondent – Authority found applicant subjected to prolonged and unwanted bullying and abuse by co-workers falling outside acceptable banter – Found respondent failed to ensure safe working environment – Found respondent failed to take action after being told by applicant of abuse – Applicant unjustifiably disadvantaged by respondent’s failure to provide safe workplace – Found applicant subject to abuse bringing applicant into contempt on ground of applicant’s national origin – Applicant unjustifiably disadvantaged by respondent subjecting applicant to racial harassment – Found respondent did not make clear to applicant intention to ask advisor to investigate applicant’s assault complaint and instead downplayed incident – Applicant unjustifiably disadvantaged by respondent’s failure to take assault complaint seriously – Found applicant resigned – Found abuse and bullying of applicant combined with respondent’s failure to address issues and clear message that applicant did not fit in significant breach of trust and confidence amounting to repudiation of employment agreement – Found applicant constructively dismissed – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent to pay applicant $3,161 reimbursement of lost wages – $10,000 compensation appropriate – Authority recommended respondent become familiar with obligations under Employment Relations Act 2000 and Human Rights Act 1993 towards individuals of various races, colour or ethnic or national origins – Authority recommended respondent develop and implement training to ensure employees and contractors understand expressing hostility against, or bringing into contempt or ridicule others on grounds of race, colour or ethnic or national origins unlawful and treated as disciplinary matter – Authority recommended respondent make written company policy available to staff setting out appropriate standards of conduct to prevent racial harassment of others – Carpenter / joiner |
| Abstract | Applicant employed by respondent as carpenter / joiner. Applicant claimed unjustifiably disadvantaged by respondent’s failure to prevent bullying and abuse of applicant. Applicant claimed unjustifiably disadvantaged by respondent subjecting applicant to racial harassment. Applicant claimed unjustifiably disadvantaged by being assaulted by contractor. Applicant claimed unjustifiably dismissed by respondent. Applicant claimed subjected to abuse by supervisors (“T” and “M”) and contractor (“J”), including derogatory references to applicant’s Irish nationality. Applicant claimed spoke to respondent’s owner (“H”) after T had been particularly abusive and told that H would speak to employees about issue. H claimed intended to speak to T and M but wanted to wait until after big job causing tiredness and stress completed. Respondent claimed applicant participated in banter that was no worse than normal among tradespeople. Applicant claimed next day assaulted by J and required hospital treatment. J claimed provoked by applicant. Next day applicant spoke to H about assault complaint. Applicant claimed asked by H whether applicant felt had future with respondent and told by H best if applicant and respondent parted company. H accepted asked where applicant saw applicant fitting in respondent. H claimed asked applicant to attend meeting to review applicant’s employment at end of probationary period. H claimed told applicant adviser (“B”) would be at meeting and applicant able to discuss assault complaint with B then. Applicant did not report for work and asked for return of tools. Applicant claimed dismissed by H during conversation. Respondent claimed applicant resigned.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Unlikely that applicant did not take part in banter but applicant subjected to unwanted abuse by co-workers falling beyond what could reasonably be expected of employee in applicant’s workplace. Bullying and abuse prolonged and respondent failed to ensure safe working environment. Applicant spoke to H about abuse but H failed to take action immediately and failed to prevent bullying of applicant. Applicant unjustifiably disadvantaged by respondent’s failure to provide safe workplace. Applicant subject to abuse by T and J bringing applicant into contempt on ground of applicant’s national origin. Abuse upset applicant and had detrimental effect on applicant’s job satisfaction. J independent contractor and not respondent’s representative but T foreman with authority over applicant. Applicant unjustifiably disadvantaged by respondent subjecting applicant to racial harassment. Likely J elbowed applicant in response to perceived provocation by applicant. H did not make clear to applicant H’s intention to ask B to investigate assault complaint and instead downplayed incident. Applicant unjustifiably disadvantaged by respondent’s failure to take assault complaint seriously. H asked applicant to attend meeting but applicant led to believe no longer wanted by respondent and, combined with H’s failure to stop abuse and bullying of applicant, lead applicant to conclude employment with respondent no longer viable. Applicant resigned. Abuse and bullying of applicant combined with H’s failure to address issues and clear message that applicant did not fit in significant breach of trust and confidence amounting to repudiation of employment agreement. Reasonably foreseeable that applicant would resign. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $3,161 reimbursement of lost wages. $10,000 compensation appropriate. Authority recommended respondent become familiar with obligations under Employment Relations Act 2000 and Human Rights Act 1993 towards individuals of various races, colour or ethnic or national origins. Authority recommended respondent develop and implement training to ensure employees and contractors understand expressing hostility against, or bringing into contempt or ridicule others on grounds of race, colour or ethnic or national origins unlawful and treated as disciplinary matter. Authority recommended respondent make written company policy available to staff setting out appropriate standards of conduct to prevent racial harassment of others. |
| Result | Applications granted; Reimbursement of lost wages ($3,161); Compensation for humiliation etc ($10,000); Orders made; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s67A;ERA s67B;ERA Part 9;ERA s103;ERA s103(1)(e);ERA s103(2);ERA s103A;ERA s109;ERA s109(a);ERA s109(b);ERA s122;ERA s124;ERA s128;ERA s128(2);ERA s128(3);ERA s160(3);Human Rights Act 1993 |
| Cases Cited | Isaac v Chief Executive of the Ministry of Social Development unreported, V Campbell, 5 June 2008, AA200/08;Kneebone v Schizophrenia Fellowship Waikato Inc unreported, V Campbell, 13 February 2007, AA31/07 |
| Number of Pages | 17 |
| PDF File Link: | 2012_NZERA_Christchurch_151.pdf [pdf 286 KB] |