| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 136 |
| Hearing date | 20 Nov 2013 - 21 Feb 2014 (2 days) |
| Determination date | 08 April 2014 |
| Member | J Crichton |
| Representation | P Talanoa ; E Coates, S Maxfield |
| Location | Auckland |
| Parties | Fatukala v Goodman Fielder New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Complaint by co-worker - Sexual harassment - Whether complainant regularly engaged in horseplay with male staff - Whether picture on complainant's Facebook page showed complainant acting in manner inconsistent with nature of complaint - Whether complainant made complaint in response to questions about complainant's attendance record - Whether disparity of treatment - Whether applicant should not have been dismissed because applicant least involved in incident - English as second language - Assistant baker |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of complainant's identity. Respondent could properly conclude applicant had sufficient English to understand and engage in disciplinary process or that applicant represented sufficiently for concerns about applicant's aptitude in English to be raised. Respondent could have proceeded with disciplinary inquiry notwithstanding English applicant's second language. Respondent had obligation to provide safe workplace for all staff, particularly in relation to complaints with sexual overtone, regardless of attributes or behaviour patterns of staff. Respondent could have concluded that complainant reliable witness notwithstanding other evidence about complainant's behaviour in workplace. Individual not dismissed employed by labour hire company rather than respondent. Good and fair employer could decide that applicant's behaviour so unsatisfactory as to justify finding of serious misconduct. Given respondent's findings, difficult not to see conduct complained of as form of sexual harassment. Process adopted by respondent appropriate in particular circumstances of case. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA Second Schedule cl10 |
| Cases Cited | Fatukala v Goodman Fielder New Zealand Ltd [2012] NZERA Auckland 370 |
| Number of Pages | 9 |
| PDF File Link: | 2014_NZERA_Auckland_136.pdf [pdf 161 KB] |