| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 8 |
| Hearing date | 22 Oct 2013 |
| Determination date | 10 January 2014 |
| Member | J Crichton |
| Representation | K Usmar ; M Beech |
| Location | Tauranga |
| Parties | P v Q and R |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant unjustifiably disadvantaged by sexual harassment in employment - UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant constructively dismissed. Dismissal unjustified. |
| Abstract | Applicant (Mr P) employed by respondents (Q and R) as caregiver (Health Care and Social Assistance Sector). Applicant claimed unjustifiably disadvantaged by sexual harassment in employment and unjustifiably dismissed by respondents. Applicant primarily employed to care for respondents’ son but duties also included work on farm. Respondents went on holiday with son and instructed employee (T) to provide list of duties to applicant. Applicant claimed list of duties included work inside and outside respondents’ house. Respondents claimed inconceivable T would provide instruction to applicant to carry out duties inside house. Applicant adamant instructed to work inside as weather bad. Respondents returned home from holiday and formed view applicant had been living in house, entertained guests and slept in respondents’ bed. Applicant claimed respondents’ bedding required cleaning but respondents claimed no need for applicant to enter bedroom or strip bedding. Applicant claimed respondents aggressive and vindictive in conversation between parties. Q made homophobic slur towards applicant and made gesture mocking applicant’s sexual orientation. R demanded applicant repay wages paid to applicant in advance. R boxed in applicant’s car with farm tractor so applicant could not leave. Applicant called police and was taken to station. R remained outside Police station while P inside and Police had to exercise “something of a subterfuge” to get applicant out of station without confrontation by R.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE: Authority ordered non publication of parties’ names and names of witnesses and any other persons involved. Applicant instructed to work inside, not by respondents directly, but by respondent’s agent, T. Little evidence applicant actually carried out duties. Inevitable respondents felt privacy violated by applicant entering bedroom even if motives pure as claimed by applicant. More likely than not Q mocked applicant’s sexual orientation and verbally abused applicant as consequence of sexual orientation. Respondents’ language and behaviour of sexual nature and more likely than not caused applicant to suffer detriment. Applicant unjustifiably disadvantaged by sexual harassment in employment. REMEDIES: No contributory conduct. $5,000 compensation appropriate.;UNJUSTIFIED DISMISSAL: Difficult to reach conclusion other than finding applicant constructively dismissed. Evidence of respondents’ attempt to prevent applicant leaving property and R following applicant to Police station uncontested. Confirmed by Police confrontation with R necessary to diffuse volatile situation. R would not have insisted on repayment of wages if employment relationship was to continue. Actions of R combined with sexual harassment made it inconceivable how applicant could continue in employment. Clear breach of duty by respondents and applicant’s resignation reasonably foreseeable. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: Applicant should have checked with respondents whether entering bedroom appropriate. 20 per cent contributory conduct. $8,000 compensation appropriate. Respondents to pay applicant $500 reimbursement of lost wages. |
| Result | Applications granted; Contributory conduct (20%)(unjustified dismissal); Compensation for humiliation etc ($5,000)(unjustified disadvantage) ($8,000)(unjustified dismissal); Reimbursement of lost wages ($500); Disbursements in favour of applicant ($71.56)(filing fee); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(d) - ERA s108 - ERA s117 - ERA Second Schedule cl10(1) |
| Number of Pages | 17 |
| PDF File Link: | 2014_NZERA_Auckland_8.pdf [pdf 257 KB] |