| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 435 |
| Hearing date | 26 Sep 2014 |
| Determination date | 23 October 2014 |
| Member | E Robinson |
| Representation | K Fayen ; D Sharma |
| Location | Auckland |
| Parties | Bennett v Real Estate Out West Ltd |
| Summary | SEXUAL HARASSMENT – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed sexually harassed and unjustifiably dismissed by respondent – Whether applicant told to show respondent’s director (“S”) applicant’s nipples – Whether applicant took private phone calls – Whether applicant used Facebook on company equipment – Whether applicant constantly loud and very aggressive – Whether applicant swore at and abused – Whether applicant resigned – Whether valid probationary period – Personal assistant |
| Abstract | AUTHORITY FOUND –;SEXUAL HARASSMENT – UNJUSTIFIED DISMISSAL: Comment made to applicant unwelcome but not part of repeated behaviour within context of workplace and applicant’s refusal to comply with request did not affect continuity of employment. No sexual harassment. Applicant sent away when sworn at by S and told not to come back. Employment relationship may have been able to be repaired but, after S had opportunity to recover from influence of alcohol, applicant entitled to consider dismissed when work phone disconnected. Applicant dismissed. No valid probationary period. No formal warning given when applicant told previously not to access Facebook during work hours such that applicant aware employment could be in jeopardy if conduct repeated. No evidence of formal disciplinary investigation into applicant’s comments to tenants. No steps taken to investigate concerns or provide applicant with opportunity to comment. Applicant not advised of right to have support person. Dismissal unjustified. REMEDIES: 10 per cent contributory conduct. Respondent to pay applicant $4,596 reimbursement of lost wages. $4,500 compensation appropriate. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (10%) ; Reimbursement of lost wages ($4,596.75) ; Compensation for humiliation etc ($4,500) ; Application dismissed (sexual harassment) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s67;ERA s103A;ERA s103A(3);ERA s124;ERA s128(2) |
| Number of Pages | 13 |
| PDF File Link: | 2014_NZERA_Auckland_435.pdf [pdf 3 MB] |