| Summary |
SEXUAL HARASSMENT – UNJUSTIFIED DISADVANTAGE – Applicant alleged unjustified constructive dismissal, disadvantage, breaches of good faith and breaches of employment agreement following respondent’s failure to properly deal with sexual harassment complaint against co-worker – Respondent denied allegations and argued full and fair investigation into sexual harassment complaint – Applicant aged 14 at time of employment relationship problem – Employment began in part-time capacity but changed to full time – Applicant gave evidence of number of inappropriate discussions with co-worker (“C”) three times applicant’s age – C claimed only one inappropriate discussion – Initially innocent work relationship but common ground at least one occasion where inappropriate conversation – Applicant claimed when unable to get inappropriate conversation out of head made complaint to respondent – Managing director (“D”) of respondent gave evidence that applicant upset on date complaint made and arranged for meeting once applicant and D better able to give and receive particulars – Prior to meeting applicant’s mother rang D and sought to be present during meeting – D told applicant’s mother that presence not required – Respondent’s witnesses claimed applicant declined to have parents present due to discussion of sensitive matters – Applicant denied any reference to sensitive matters and claimed did not insist on parents being present because told would simply be writing down recollection of incident/s – Meeting lasted for two hours and involved three members of management asking applicant detailed and searching questions – D gave evidence that applicant tearful and anxious when complaint made but confident and articulate at meeting – After short period of investigation decision made that unable to decide who started offending conversation – C alleged applicant started it and applicant claimed C started it – Respondent’s had to conclude, in absence of any conclusions as to who was responsible for starting conversation, that there had been no sexual harassment – Respondent’s investigator (“F”) reached conclusion that “applicant primary instigator of turning conversation along inappropriate lines and convinced C had continued with it” – F recommended final written warning to C and verbal warning to applicant – Applicant so upset with results of complaint, resigned and raised personal grievance – Authority satisfied that given age of applicant and nature of matters complained about respondent should not have agreed to interview applicant without appropriate support person – As matter of law applicant of an age when should be receiving care and protection of parents – Applicant thought meeting would be progressed on footing that would only write down complaint for respondent, instead, confronted by management and questioned for two hours – Clear to Authority that applicant rejected idea of mother being involved because of mistaken belief about nature of meeting and correctly discerned respondent did not want parents present – Authority found respondent obtained applicant’s consent to not having support person by failing to make clear the nature of proposed process and by inadvertently allowing it to become evident that preferred to conduct investigation without parents present – Even if vehemently opposed by applicant, respondent absolutely obligated to ensure 14 year old young person properly protected when going through investigation process – Respondent’s actions made worse by issuance of warning in circumstances where no support person – Process unfair – Respondent’s conclusion that applicant initiated subject of conversation and therefore not sexual harassment not soundly based – Respondent did not take sufficient account of other conversations applicant alleged occurred – Other evidence suggested respondent’s investigation not as thorough as could have been – If company had more experience dealing with this kind of sensitive matter might have conducted further and better inquiries – F conceded that would have been much more concerned about sexual harassment allegation if knew C intended to get applicant to ride home with him – Disputed evidence whether respondent knew applicant victim of familial sexual abuse – F and D both claimed did not know applicant herself a victim – Applicant’s father gave evidence that told D about applicant’s experience as victim of sexual abuse – Because unclear whether respondent knew about applicant’s family history impossible to expect respondent to take history into account in interactions with applicant – Respondent obligated to both employees – Authority found difficult not to conclude respondent preferred result that fell short of termination of C – Respondent’s decision to prefer evidence of C over evidence of applicant given the deficits in the investigation process not action of fair and reasonable employer faced with complaint of sexual harassment – Conclusion reinforced by obvious power imbalance between applicant and C, failure to adequately protect applicant in investigation process, fairness and balance of investigation particularly around apparent importance of C and relative unimportance of applicant and ultimate decision to punish applicant without warning of possible disciplinary outcomes – UNJUSTIFIED CONSTRUCTIVE DISMISSAL – Resignation not volunteered but inevitable consequence of respondent’s breach of duty in failing to conduct proper investigation and then failing to reach credible outcome which applicant could have reasonably been expected to find acceptable – REMEDIES – Authority preferred to deal with all claims exclusively in terms of personal grievance claim – Authority found respondent’s process so completely flawed that uncomfortable relying on anything that emerged from process – Inconceivable that applicant would initiate complaint in circumstances where it is said initiated some or all of the unacceptable behaviour – No contributory conduct – Applicant entitled to lost income to be quantified by counsel – Compensation $12,750 – RECOMMENDATION OF AUTHORITY – Recommendations made under s123(1)(d)(ii) ERA – Respondent should give priority to ensuring robust sexual harassment policy in place – Authority particularly troubled by quality of investigation, however, F to very best of ability had tried genuinely to produce proper outcome – However, clear that F did not have necessary experience or background to conduct investigation required in circumstances – Authority suggested merit in inquiries of this kind being conducted by experienced independent and outside person on fee-for-service basis – Respondent to adopt conviction that will assertively deal with any future episodes of sexual harassment so as to send clear signal that sexual harassment not tolerable or negotiable in any way in workplace – Sales assistant |