| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 106/06 |
| Hearing date | 26 Apr 2006 |
| Determination date | 19 July 2006 |
| Member | P R Stapp |
| Representation | D Patten ; P Thompson |
| Location | Wellington |
| Parties | Prince v B & M Entertainment Ltd t/a Mermaid Bar |
| Summary | UNJUSTIFIED DISMISSAL – Serious misconduct – Alleged sexual harassment – Dancer (R) in respondent’s bar complained that applicant touched her inappropriately – Applicant alleged he accidentally touched R on buttock when he tried to get her attention to open safe door – R alleged touch was deliberate and caused her to remonstrate with applicant – Meeting between respondent and applicant where applicant handed in written apology – Applicant alleged at meeting company director was influenced by letter he had received regarding unproven sexual harassment allegations against applicant during previous employment at Pak ‘N Save – Applicant had made successful personal grievance claim in Authority against Pak ‘N Save – Respondent put applicant’s written apology and his explanation to R – R declined to accept apology – Respondent concluded had to dismiss applicant because he continued to deny complaint – At meeting on following day applicant was handed letter summarily dismissing him for sexual harassment – Dismissal predetermined – Letter handed to applicant before he could have input into decision – Respondent did not carry out proper investigation to get fair conclusion – Evidence of respondent's witnesses contradictory - Respondent had to decide whether touch deliberate - Respondent could not have come to fair decision without making decisions on various issues including what the touch involved and who was actually present – Pak ‘N Save allegation was an undue influence in respondent’s decision – Respondent was also detracted in its inquiry with raising of other unsubstantiated allegations that applicant had made derogatory comments about other workers - Fair and reasonable employer would probably have considered other options besides dismissal including counselling or training - Unjustified dismissal – Remedies – Contributory conduct – Authority found that applicant inappropriately touched R to get her attention – When applicant said it was an “accident” he meant an error of judgment – Applicant directly the cause of the situation – Contribution 100% so no order for any remedies – COSTS – 1 day investigation meeting – Respondent to pay applicant $1,960 as contribution towards reasonable costs and $70 for filing fee - Length of service two weeks - Bar Manager |
| Result | Application granted ; Costs in favour of applicant ($1,960) ; Disbursements (filing fee)($70) |
| Statutes | ERA s103A |
| Cases Cited | Air New Zealand Ltd v Hudson [2006] 1 ERNZ 415 |
| Number of Pages | 11 |
| PDF File Link: | wa 106_06.pdf [pdf 54 KB] |