| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 338 |
| Hearing date | 18 Mar 2013 - 31 May 2013 (2 days) |
| Determination date | 05 August 2013 |
| Member | R A Monaghan |
| Representation | D Erickson, J Greenleaf ; G Mayes |
| Parties | D v E Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Sexual harassment – Applicant claimed unjustifiably disadvantaged by sexual harassment in workplace and unjustifiably dismissed by respondent – Frequent comments of sexual nature by co-workers regarding applicant’s appearance - Inappropriate language used to describe applicant’s partner - Whether respondent aware or should have been aware of sexual harassment - Whether respondent took reasonable steps to ensure safe work place - Sales Cadet |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant sexually harassed by co-workers but not by respondent or representative of respondent. Applicant did not notify respondent of sexual harassment. Not open for applicant to expect or assume respondent notified of behaviour. Respondent took some steps to manage risk of sexual harassment through code of conduct and sexual harassment policy but not enough to meet obligations. Respondent breached duty but breach did not cause resignation. Applicant initiated termination of employment. No unjustified disadvantage. No constructive dismissal. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(2);ERA s108(1);ERA s108(1)(b);ERA s108(2);ERA s117;ERA s118;ERA Second Schedule cl10;Health and Safety in Employment Act 1992 s2A;HSE s6;HSE s19 |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31 ; [2002] 2 NZLR 342;Griffith v Sunbeam Corp Ltd unreported, Couch J, 28 July 2006, WC13/06;Van As v Auckland Airport Kiwi Hotel Ltd [2013] NZERA Auckland 73 |
| Number of Pages | 19 |
| PDF File Link: | 2013_NZERA_Auckland_338.pdf [pdf 315 KB] |