| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 253 |
| Hearing date | 25 Feb 2014 in Whangarei; 16-18 May 2016 in Auckland |
| Determination date | 26 July 2016 |
| Member | Eleanor Robinson |
| Representation | B Henry; J Dobson; T Sewell |
| Location | Auckland |
| Parties | Owen v The Chief Executive of the Department of Corrections |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s handling of applicant’s sexual harassment complaint and failure to provide safe work environment – Applicant claimed unjustifiably dismissed by respondent – Sexual harassment - Community Work Supervisor |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Order for non-publication of respondent’s employee. Respondent acted fairly and reasonably in dealing with applicant’s complaints of bullying and concerns about workload. No unjustified disadvantage. Fair and reasonable employee would have dealt with applicant’s employee in accordance with s 117 and own procedures. Fair and reasonable employer would have taken more effective steps to address situation after second incident. Respondent took adequate steps to resolve issue after third incident but still needed to examine whether adequate inquiries made earlier and advise applicant of right to take further action. Applicant unjustifiably disadvantaged by respondent’s handling of complaint. Respondent failed to provide applicant with safe working environment after first incident. Applicant unjustifiably disadvantaged by failure. Applicant not presented with choice of being dismissed or resigning. No breach of duty towards applicant to cause resignation. Respondent acted reasonably in allowing applicant a cooling down period. No dismissal. REMEDIES: No contributory conduct. $7,000 compensation appropriate. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($7,000) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103 ; ERA s103(1)(b) ; ERA s103(1)(d) ; ERA s108 ; ERA s108(1)(a) ; ERA s108(1)(b) ; ERA s117 ; ERA s117(1)(b) ; ERA s117(2) ; ERA s117(3) ; ERA s117(4) ; ERA s124 ; ERA s174 ; ERA Second Schedule cl10(1) |
| Cases Cited | Adams t/a Untouchable Hair & Skin v Brown [2015] NZEmpC 77 ; Attorney-General v Gilbert [2002] 2 NZLR 342 (CA) ; Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union of Workers Inc [1994] 2 NZLR 415 (CA) ; Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA) ; Boobyer v Good Health Wanganui Ltd EmpC Wellington WEC3/94, 24 February 1994 ; Stiffe v Wilson & Horton Ltd EmpC Auckland AC94/00, 5 December 2000 ; Wellington Road Transport etc IUOW v Fletcher Construction Co Ltd [1983] ACJ 653 (AC) ; Wellington, Taranaki and Marlborough Clerical Administration and Related Workers IUOW v Greenwich t/a Becket Employment [1983] ACJ 965 (AC) |
| Number of Pages | 35 |
| PDF File Link: | 2016_NZERA_ Auckland_ 253.pdf [pdf 347 KB] |