| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 68 |
| Hearing date | 16 Apr 2013 |
| Determination date | 24 April 2013 |
| Member | M B Loftus |
| Representation | A Boniface ; No appearance |
| Location | Dunedin |
| Parties | Harrington v Picture Vehicles Ltd (formerly known as Central Freight Services Ltd) and Anor |
| Other Parties | Thunderbird One Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Discrimination – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by second respondent’s actions, discriminated against on basis of gender and sexually harassed – Applicant claimed unjustifiably dismissed by second respondent – Authority found applicant unjustifiably disadvantaged by warning for damage applicant could not have caused, threatened disciplinary action and unilateral variation of applicant’s duties and place of employment – Found applicant sexually harassed – Found applicant discriminated against on basis of gender – Found second respondent’s conduct would obviously lead to applicant’s resignation – Found second respondent’s failures to address sexual harassment complaint and failure to assist with access to medical assistance in face of obvious and serious condition each amounted to breach of duty sufficient to cause applicant to resign – Found applicant constructively dismissed – Dismissal unjustified – REMEDIES – No contributory conduct – Second respondent to pay applicant $38,243 reimbursement of lost wages – $25,000 compensation appropriate – PENALTY – Applicant sought penalty for respondents’ obstruction of investigation process – Found applicant advantaged by respondents’ absence from investigation meeting – No penalty – Truck driver |
| Abstract | Applicant employed by second respondent as truck driver. Applicant claimed unjustifiably disadvantaged by second respondent’s actions, discriminated against on basis of gender and sexually harassed. Applicant claimed unjustifiably dismissed by second respondent. No appearance for respondents. Applicant sought penalty for respondents’ obstruction of investigation process by not attending investigation meeting. Applicant warned for damaging vehicle although not present when damage occurred. Applicant threatened with disciplinary action when raised issue about requirement applicant work hours exceeding statutory maxima for drivers. Second respondent varied applicant’s duties and place of work unilaterally. Applicant complained about two incidents involving supervisor, including inappropriate touching, but told by second respondent investigation would not occur until after Christmas and complaint could result in disciplinary action against applicant. Applicant informed later by second respondent sexual harassment claim unfounded. Applicant asked to move load beyond capability of any person to move, received threats from colleagues when refused to move load after brief attempt, and felt pain. Applicant subjected to aggressive and inappropriate comments from colleagues following day in presence of manager who did not intervene. Following day applicant experienced further pain, subjected to derision and laughter when sought assistance and claimed some colleagues blocked applicant access to first aid and refused applicant help in obtaining medical assistance, including telling applicant would be subject to disciplinary action if called ambulance. After applicant taken to doctor by applicant’s father, applicant refused transport assistance by second respondent to get to hospital. After applicant’s return to work, exchange with colleague ended with colleague making inappropriate and hurtful comment about applicant’s recent illness. Applicant resigned. Applicant claimed constructively dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant unjustifiably disadvantaged by warning for damage applicant could not have caused, threatened disciplinary action and unilateral variation of applicant’s duties and place of employment. Second respondent’s threat applicant could face disciplinary action for making sexual harassment complaint about supervisor totally improper and subsequent investigation into complaint, it any, totally deficient as applicant not spoken to. Applicant sexually harassed. Applicant discriminated against on basis of gender. Second respondent’s conduct and failures would obviously lead to applicant’s resignation. Failures to address sexual harassment complaint and failure to assist with access to medical assistance in face of obvious and serious condition each amounted to breach of duty by second respondent sufficient to cause applicant to resign. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Second respondent to pay applicant $38,243 reimbursement of lost wages. $25,000 compensation appropriate.;PENALTY: Applicant advantaged by respondents’ absence from investigation meeting. No penalty. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal) ; Reimbursement of lost wages ($38,243.38) ; Compensation for humiliation etc ($25,000) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Harrington v Picture Vehicles Ltd (formerly known as Central Freight Services Ltd) [2012] NZERA Christchurch 227;Wellington, Taranaki and Marlborough Clerical etc IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95;Z v A [1993] 2 ERNZ 469 |
| Number of Pages | 8 |
| PDF File Link: | 2013_NZERA_Christchurch_68.pdf [pdf 165 KB] |