| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2016] NZERA Christchurch 96 |
| Hearing date | 16-Feb-16 |
| Determination date | 24 June 2016 |
| Member | David Appleton |
| Representation | P Moore ; Mr Z |
| Location | Christchurch |
| Parties | Ms X v Y Ltd |
| Summary | SEXUAL HARASSMENT – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed sexually harassed by respondent – Applicant claimed unjustifiably disadvantaged by bullying, failure to provide training and failure to pay wages – Applicant claimed unjustifiably dismissed by respondent – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – PENALTY – Applicant sought penalty for failure to provide employment agreement and supply wage and time records |
| Abstract | AUTHORITY FOUND -;SEXUAL HARASSMENT – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant’s oral evidence about frequency of sexual harassment inconsistent with written evidence. No sexual harassment. Respondent accused applicant of being dishonest and incompetent. Allegations made with closed mind, constituted bullying. Applicant disadvantaged by bullying. Applicant not disadvantaged by lack of structured training and non-payment of wages. Respondent intended to dismiss applicant when remarks were made. Respondent’s actions had effect of immediate dismissal. Applicant not given clear indication about proposed meeting and continued to receive angry allegations through text and email. Respondent made no apology for reaction or remarks made. When respondent attempted to rescind dismissal, applicant entitled to believe dismissal continued. Dismissal unjustified. REMEDIES: Respondent made deliberately cruel remark designed to cause maximum hurt and upset. Respondent’s conduct after dismissal required increase in compensation by $8,000. No contributory conduct. Respondent to pay applicant $18,252 reimbursement of lost wages. $18,500 compensation for humiliation etc appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent admitted withholding pay because of overpay. No wage and time records produced. No evidence applicant did not work rostered hours. Respondent to pay applicant $790 arrears of wages and $63 arrears of holiday pay. Interest payable.;PENALTY: Respondent did not consider or respond to any issues raised by applicant in relation to employment agreement. Employment agreement never signed by either party. Modest penalty appropriate. Unclear applicant suffered serious harm by respondent’s failures. $750 penalty appropriate. Applicant asked for wage and time records on several occasions, but never provided. Breaches flagrant. Applicant suffered harm by having to piece together pay information from own records. $1,000 penalty appropriate. |
| Result | Applications granted ; Reimbursement of lost wages and holiday pay ($18,252) ; Compensation for humiliation etc ($18,500) ; Arrears of wages ($790) ; Arrears of holiday pay ($63.20) ; Interest (5%) ; Penalty ($750)(payable to Crown)($1,000)(payable to applicant) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s60;ERA s60A;ERA s63A;ERA s63(2);ERA s63(2)(d);ERA s67A;ERA s103(1)(b);ERA s103(1)(d);ERA s103A;ERA s123(1)(a);ERA s 123(1)(b);ERA s123(1)(c);ERA s123(1)(c)(i);ERA s124;ERA s128;ERA s128(3);ERA s130;ERA s136(2);ERA Second Schedule cl11;Judicature (Prescribed Rate of Interest) Order 2011 cl4;Judicature Act 1908 s87;Judicature Act 1908 s87(3) |
| Cases Cited | Akmedov v KH International Ltd [2016] NZERA Wellington 30;Hall v Dionex Pty Ltd [2015] NZEmpC 29;New Zealand Labourers IUOW v Hodder & Tolley Ltd (1989) ERNZ Sel Cas 235 (LC);Osborne v Japan Auto (New Zealand) Ltd t/a ABC Motor Group Ltd [2003] 1 ERNZ 270 (EmpC);Stiffe v Wilson & Horton Ltd EmpC Auckland AC94/00, 5 December 2000;Strachan v Moodie (aka Miss Alice") t/a Moodie & Co [2012] NZEmpC 95" |
| Number of Pages | 27 |
| PDF File Link: | 2016_NZERA_Christchurch_96.pdf [pdf 429 KB] |