| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 388/05 |
| Hearing date | 20 Apr 2005 - 7 Jun 2005 (3 days) |
| Determination date | 30 September 2005 |
| Member | A Dumbleton |
| Representation | G Spry, K Ashcroft ; J Watson |
| Location | Auckland |
| Parties | Nichols v Te Awamutu Wines & Spirits (1998) Ltd t/a Super Liquor Te Awamutu |
| Summary | SEXUAL HARASSMENT - UNJUSTIFIED DISMISSAL - Constructive dismissal - Alleged ongoing verbal and physical abuse of sexual nature by two male managers of shop - Often sworn at and referred to as bitch," "bastard" and "cunt" - Particular incidents referred to involving touching, groping and patting of applicant's body including breasts and crotch - Also complained of conduct such as pushing duster or vacuum cleaner pipe between her legs and making lewd comments - Applicant's account of events accepted - Similar fact evidence from other employees and a customer showing well marked pattern of behaviour relevant and probative - Credibility findings by another Authority member in related personal grievance by another employee persuasive as corroboration of independently formed views - Behaviour of managers amounted to sexual harassment - Language and behaviour of sexual nature detrimentally affected applicant's employment and job satisfaction - Detriment was humiliation, embarrassment, intimidation, fear and stress-related illness - Harassment serious breach of statutory duties under Employment Relations Act 2000 and Health and Safety in Employment Act 1992 - Also breach of implied contractual duty of trust and confidence - Resignation reasonably foreseeable consequence of breaches - But for harassment applicant would not have left employment - Not significant that some of incidents occurred at premises outside working hours - Unjustified constructive dismissal - Dismissal occurred on date respondent received letter setting out applicant's views on returning to work - Remedies - Applicant unable to mitigate loss due to stress-related illness directly caused by respondent's breaches of duty - Entitled to reimbursement of lost wages in full amount claimed - PENALTY - Applicant sought penalty for failure to provide written employment agreement - Claim outside 12 month time limit - Failure to provide agreement further reflection on poor attitude of managers - PRACTICE AND PROCEDURE - Permanent order prohibiting publication of name and identifying details of former employee ("B") summoned to give evidence - Application for permanent name suppression for respondent and managers declined - Prospective employees and customers entitled to know what sort of employer respondent was - Interim order granted until certain date to allow opportunity for challenge to aspect of determination declining permanent suppression - Comments on seriousness of female manager's actions in writing to B's new employer stating respondent would not do business with them until B dismissed - Matter referred to Solicitor-General - COSTS - Less than half day investigation meeting - Reasonable contribution to applicant's costs ordered - Customer services assistant" |
| Result | Application granted ; Reimbursement of lost wages ($10,507.78)(6 months) ; Compensation for humiliation etc ($13,000) ; Orders accordingly ; Costs in favour of applicant ($3,750) ; Disbursements ($70)(Filing fee) |
| Statutes | ERA s63A;ERA s64;ERA s64(2);ERA s65;ERA s65(2);ERA s108;ERA s115;ERA s134;ERA s135(5);ERA s160(3);ERA Second Schedule cl10;ERA Second Schedule cl15;HSE s6 |
| Cases Cited | Auckland Electric Power Board v Auckland Local Authorities Union [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;O'Brien v Chief Constable of South Wales Police [2005] UKHL 26;Z v A [1993] 2 ERNZ 469 |
| Number of Pages | 13 |
| PDF File Link: | aa 388_05.pdf [pdf 56 KB] |