| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 138 |
| Hearing date | 29 May 2013 |
| Determination date | 09 July 2013 |
| Member | C Hickey |
| Representation | P Moore ; No appearance |
| Location | Christchurch |
| Parties | Y v Kevin Hyde Engineering Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Sexual Harassment – Applicant claimed unjustifiably disadvantaged by sexual harassment in employment and unjustifiably dismissed by respondent – Authority found unwelcome and offensive language of a sexual nature directed at applicant by respondent and co-workers – Found applicant unjustifiably disadvantaged by language and behaviour of respondent – Found respondent in breach of obligations to applicant and reasonably foreseeable applicant would resign in circumstances – Found applicant constructively dismissed - Dismissal unjustified - REMEDIES – No contributory conduct – Respondent to pay applicant $15,795 reimbursement of lost wages - $12,000 compensation appropriate - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay - Found applicant paid below minimum wage – Respondent to pay applicant $7,528 arrears of wages and holiday pay - Interest payable - PENALTY – Applicant sought penalties – Found respondent failed to provide employment agreement – Found respondent failed to advise applicant of right to seek independent legal advice – Found respondent failed to inform applicant of rights under Holidays Act 2003 - Found respondent failed to supply applicant with wage and time records – Found unlikely breaches deliberate – Found no purpose in ordering penalty against company no longer trading - No penalty - COSTS – Less than one day investigation meeting - Applicant sought $7,020 indemnity costs – Authority found appropriate to increase notional daily tariff - Respondent to pay applicant $3,500 contribution towards costs – Labourer |
| Abstract | Applicant employed by respondent. Applicant claimed unjustifiably disadvantaged by sexual harassment in employment and unjustifiably dismissed by respondent. No appearance for respondent. Applicant sought arrears of wages and holiday pay and penalties. Applicant claimed subject of sexual language from respondent and co-workers. Language included questioning of applicant’s sexual orientation and offensive language of sexual nature. Respondent characterised language as ‘banter’. Applicant made redundant by respondent. Two months later respondent asked applicant to return to work. Applicant claimed did not want to return but pressured by parents who were not aware of harassment. Respondent claimed applicant spent excessive time on cell phone and in bathroom. Respondent claimed applicant avoiding work. Applicant claimed extended time in bathroom due to being upset and gastrointestinal symptoms that developed as result of harassment. A few weeks after returning to work applicant told by respondent to leave cell phone in ‘smoko room’. Applicant refused and told by respondent “if you don’t like it here, piss off”. Applicant left and did not return. Applicant claimed constructively dismissed. Applicant claimed paid below minimum wage and not paid full holiday pay. Applicant claimed not offered employment agreement or told of right to seek independent legal advice. Applicant claimed respondent failed to inform applicant of rights under Holidays Act 2003 and failed to keep accurate wage and time records. Applicant sought $7,020 indemnity costs.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Authority ordered non-publication of applicant’s name. Unwelcome and offensive language of sexual nature directed at applicant by respondent and co-workers. Language and behaviour went beyond bounds of reasonable banter. Applicant sexually harassed in employment. Authority able to make finding that personal grievance is of type other than that alleged. Language used by respondent abusive in nature. Applicant unjustifiably disadvantaged by language and behaviour of respondent. Respondent telling applicant to “piss off” combined with sexual harassment from respondent and co-workers led to breakdown of applicant’s trust and confidence in respondent. Respondent in breach of obligations to applicant and reasonably foreseeable applicant would resign in circumstances. Applicant young and vulnerable. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $15,795 reimbursement of lost wages. $12,000 compensation appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant paid below minimum wage. Respondent to pay applicant $7,528 arrears of wages and holiday pay. Interest payable.;PENALTY: Respondent failed to provide employment agreement. Respondent failed to advise applicant of right to seek independent legal advice. Respondent failed to inform applicant of rights under Holidays Act 2003. Respondent failed to supply applicant with wage and time records. Unlikely breaches deliberate. No purpose in ordering penalty against company no longer trading. No penalty.;COSTS: Less than one day investigation meeting. Appropriate to increase notional daily tariff as meeting set to take two days but no appearance for respondent. Respondent to pay applicant $3,500 contribution towards costs. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal)(arrears of wages and holiday pay); Reimbursement of lost wages ($15,795); Compensation for humiliation etc ($12,000); Arrears of wages and holiday pay ($7,528.48); Interest (5%); Application dismissed (penalty); Costs in favour of applicant ($3,500); Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA - ERA s63A(2)(a) – ERA s63A(2)(b) - ERA s103(1)(d) – ERA s108 - ERA s108(b) – ERA s117 ERA s122 – ERA s124 - ERA s128(2) – ERA s128(3) – ERA s130 - ERA s130(1) – ERA s130(2) - ERA s133 – ERA s135 - ERA s160 - ERA s174 – ERA Second Schedule cl11 – Holidays Act 2003 - Holidays Act 2003 s73 - Judicature Act 1908 |
| Cases Cited | PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808;Sam’s Fukuyama Food Services Ltd v Zhang [2011] ERNZ 482;Z v A [1993] 2 ERNZ 469 |
| Number of Pages | 20 |
| PDF File Link: | 2013_NZERA_Christchurch_138.pdf [pdf 229 KB] |