| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 46 |
| Hearing date | 17 - 19 Nov 2015 (3 days) |
| Determination date | 17 February 2016 |
| Member | Robin Arthur |
| Representation | M Smyth ; M Frogley, C Ireland (in person) |
| Location | Auckland |
| Parties | Balani v TCS Old Co Ltd and Anor |
| Other Parties | Ireland |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Whether applicant employed by liquidated company (“PDL”) or first respondent - SEXUAL HARASSMENT - UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondents – Applicant claimed sexually harassed by second respondent – Applicant claimed unjustifiably disadvantaged by second respondent’s uncomfortable behaviour and failure to properly disclose customer complaints – PENALTY – Applicant sought penalty for breaches of employment agreement (“EA”) – BREACH OF CONTRACT – Applicant sought damages to cover healthcare costs incurred due to second respondent’s behaviour - Shop manager |
| Abstract | AUTHORITY FOUND –;PRACTICE AND PROCEDURE: EA referred to PDL as employer. PDL made payments to staff. PDL”S only business to provide staff to first respondent. Applicant’s work exclusively done for first respondent. First respondent had degree of control and integration over applicant’s work. First respondent either joint employer with PDL or actual employer of applicant with PDL acting as agent. Applicant employed by first respondent.;SEXUAL HARASSMENT - UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Second respondent’s behaviour not of inherently sexual nature, although it assumed level of personal intimacy. No sexual harassment. Second respondent’s behaviour in trying to see applicant out of work intruded into her private time and seriously damaged applicant’s trust and confidence. Applicant unjustifiably disadvantaged by behaviour. Second respondent misled applicant about reason for off-site meetings and produced previously unseen customer complaints. Second respondent did not act in good faith. Applicant unjustifiably disadvantaged by failure to show customer complaints. Reasonably foreseeable that second respondent’s comments towards applicant on 5 August would make work environment intolerable for applicant, and that applicant would resign, given stress from earlier breaches. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. First respondent to pay applicant $7,025 reimbursement of lost wages. $6,000 compensation appropriate.;PENALTY: Second respondent’s behaviour seriously undermined applicant’s trust and confidence and breached good faith. Behaviour instigated first respondent’s breaches of EA. Need for punishment, deterrence and to recognise harm caused to applicant. $6,000 penalty appropriate.;BREACH OF CONTRACT: Applicant would have incurred costs of GP and psychiatrist visits anyway as part of regular visits. Counselling directly related to work stress. Respondent to pay applicant $1,000 damages. |
| Result | Applications granted ; Reimbursement of lost wages ($7,025) ; Compensation for humiliation etc ($6,000) ; Penalty ($6,000)(payable to applicant) ; Damages ($1,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1);ERA s4(1A);ERA s6(2); ERA s6(3);ERA s103(1)(b);ERA s108;ERA s124;ERA s134(2);ERA s136(2);ERA s174E;Companies Act 1993 s248(1)(c);Human Rights Act 1993 s 62(2) |
| Cases Cited | Colosimo v Parker (2007) 8 NZELC 98, 622 (EmpC);DML v Montgomery [2014] NZHRRT 6 ;;Fagotti v Acme Ltd [2015] NZEmpC 135;Hall v Dionex Pty Ltd [2015] NZEmpC 29;Hutton v Provencocadmus Ltd (in receivership) [2012] NZEmpC 207, [2012] ERNZ 566;Kumar v Icehouse (NZ) Ltd [2006] ERNZ 381 (EmpC);L v M Ltd [1994] 1 ERNZ 123 (ET);McDonald v Ontrack Infrastructure Ltd [2010] NZEmpC 132, [2010] ERNZ 223;Mehta v Elliot [2003] 1 ERNZ 451 (EmpC);Orakei Group (2007) Ltd v Doherty (No 1) [2008] ERNZ;Para Franchising Ltd v Whyte [2002] 2 ERNZ 120 (EmpC);PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC);Proceedings Commissioner v Harwood [1996] NZAR 451 (CRT);Rodger v Fogleberg, Vice Chancellor of University of Otago [2003] 1 ERNZ 223 (EmpC);Z v Y Ltd and A [1993] 2 ERNZ 469 (EmpC) |
| Number of Pages | 34 |
| PDF File Link: | 2016_NZERA_Auckland_46.pdf [pdf 558 KB] |