| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 270 |
| Hearing date | 14 Jun 2012 |
| Determination date | 13 December 2012 |
| Member | M B Loftus |
| Representation | T J McKenzie ; P Zwart |
| Location | Christchurch |
| Parties | C v D Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Sexual Harassment – UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed unjustifiably disadvantaged by sexual harassment at workplace and unjustifiably dismissed by respondent – Respondent claimed applicant justifiably dismissed on ground of redundancy – Authority found applicant subjected to unwelcome, offensive and repeated behaviour that had detrimental effect on applicant’s job satisfaction – Applicant unjustifiably disadvantaged by respondent subjecting applicant to sexual harassment – Found applicant advised of potential redundancy by, and responded to, respondent’s operations manager without opportunity to address respondent’s director (“G”) as decision maker – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent to pay applicant $11,596 reimbursement of lost wages – $10,000 compensation appropriate – PENALTY – HEALTH AND SAFETY – Applicant sought penalty for respondent’s failure to provide safe workplace – Found no evidence G’s failure to apologise for harassment once applicant’s dissatisfaction brought to G’s notice led to unsafe workplace – Found no evidence respondent required to have building inspected professionally after Christchurch earthquake – Found no evidence respondent failed to take reasonable steps to provide safe workplace – No penalty |
| Abstract | Applicant claimed unjustifiably disadvantaged by sexual harassment at workplace and unjustifiably dismissed by respondent. Applicant sought penalty for respondent’s failure to provide safe workplace. Applicant claimed subjected to comments of sexual nature and inappropriate behaviour by respondent’s director (“G”) and raised eight specific incidents. G claimed no recollection of one incident, denied two incidents occurred, accepted three incidents occurred but denied sexual innuendo intended, accepted one incident but claimed applicant willing participant and accepted one incident occurred but did not remember telling applicant about incident. Applicant claimed G’s behaviour sexual harassment and G’s failure to apologise for behaviour was failure to provide safe workplace. Following first Christchurch earthquake applicant told by G everything fine and business as usual. Applicant called Department of Labour and Government Earthquake Helpline and advised all public buildings must be checked by someone appointed by Council. Applicant raised concerns with G and told G’s personal check of building showed it was safe. G subsequently told applicant could take day off but applicant not paid after refused to attend work next day. Applicant returned to work after state of emergency lifted but left after large aftershock reinforced applicant’s uncertainty about building’s safety. Applicant not paid for time off. After intermittent absences applicant handed letter by respondent’s operations manager (“H”) stating applicant at risk of redundancy due to respondent’s financial position. At subsequent meeting with H applicant dismissed. Applicant claimed targeted for redundancy because of applicant’s complaints about sexual harassment and stance over safety of building.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Authority ordered non-publication of names of parties and witnesses. Respondent accepted some incidents occurred and fact G did not intend sexual innuendo in three incidents irrelevant. Two incidents G could not recollect occurred. No need to decide whether two events denied by G occurred or whether applicant participated in one incident willingly, although little doubt all incidents occurred. Applicant subjected to unwelcome, offensive and repeated behaviour that had detrimental effect on applicant’s job satisfaction. Applicant unjustifiably disadvantaged by respondent subjecting applicant to sexual harassment. Sufficient reason for respondent to look at staffing levels including applicant’s position. Applicant advised of potential redundancy by, and responded to, H without opportunity to address G as decision maker. Chance applicant may have been able to suggest scenarios in which applicant retained given duties performed by applicant remained. Respondent did not follow own process in letter stating would be further consultation. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $11,596 reimbursement of lost wages. $10,000 compensation appropriate.;PENALTY – HEALTH AND SAFETY: No evidence G’s failure to apologise for harassment once applicant’s dissatisfaction brought to G’s notice led to unsafe workplace, especially as sexual innuendo and behaviour ceased. No evidence respondent required to have building inspected professionally other than applicant’s understanding of what applicant had been told. No evidence respondent failed to take reasonable steps to provide safe workplace. G acted as thought appropriate given no apparent damage to building or stock and gave credible explanations as to why believed building safe. No penalty. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal); Reimbursement of lost wages ($11,596); Compensation for humiliation etc ($10,000); Applications dismissed (penalty)(health and safety); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4(1A);ERA s103A;ERA s108;ERA s124;ERA s128(2);ERA Second Schedule cl10(1);Health and Safety in Employment Act 1992;Interpretation Act 1999;Interpretation Act 1999 s4;Interpretation Act 1999 s7 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Christchurch_270.pdf [pdf 196 KB] |