| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 131 |
| Hearing date | 1-2 Apr 2014 |
| Determination date | 04 April 2014 |
| Member | T G Tetitaha |
| Representation | R McCabe, C Abaffy ; A Caisley |
| Location | Auckland |
| Parties | A v B Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Whether applicant sexually harassed flight attendant (complainant") during overnight stay at foreign destination - Whether applicant went to complainant's hotel room because concerned about complainant's welfare - Whether applicant invited into complainant's room - Whether applicant touched inside of complainant's leg - Whether touching accidental - Whether respondent failed to consider applicant's responses genuinely - Whether disparity of treatment - Suspension - Pilot" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of identities of parties, complainant and other specified employee. No evidence before respondent justifying applicant's concern about complainant's welfare. Evidence of rapport between applicant and complainant did not justify applicant entering complainant's room and getting onto complainant's bed. No evidence applicant invited to enter complainant's room or get onto bed. No evidence complainant had motivation to lie. No necessity for respondent to enquire about complainant's view on outcome of disciplinary process. Factual findings leading to finding of sexual harassment implied touching of serious nature. Even if detriment required under respondent's harassment policy, respondent had evidence of detriment to complainant. Applicant's conduct could have deeply impaired respondent's confidence and trust in employee required to conduct overnight stays 66 per cent of time. Sufficient evidence for respondent to reasonably conclude serious misconduct justifying dismissal occurred. Concerns raised with applicant properly. Little evidence of antagonistic behaviour by respondent's fleet manager and interview transcripts did not evidence inappropriate questioning of applicant. No evidence other interviewees treated more favourably. No finding of sexual harassment in respect of other employee. Even if disparity of treatment, explanation for disparity sufficient based on sexual nature and context of applicant's actions. Even if explanation insufficient, employer not bound forever by over-generous treatment of particular employee on previous occasion. Process leading to dismissal fair and reasonable. Dismissal justified. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s103A(2);ERA s103A(3);ERA s103A(5);ERA s108(1) |
| Cases Cited | A v B [2014] NZERA Auckland 18;Angus v Ports of Auckland Ltd (No 2) [2011] ERNZ 466;C v Air Nelson Ltd [2011] ERNZ 207;Chief Executive of the Department of Inland Revenue v Buchanan (No 2) [2005] ERNZ 767;Fuiava v Air New Zealand Ltd [2006] ERNZ 806;Makatoa v Restaurant Brands (NZ) Ltd [1999] 2 ERNZ 311;Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483;Samu v Air New Zealand Ltd [1995] 1 ERNZ 636 |
| Number of Pages | 15 |
| PDF File Link: | 2014_NZERA_Auckland_131.pdf [pdf 274 KB] |