| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 248/08 |
| Hearing date | 10 Jul 2007 - 21 Aug 2007 (3 days) |
| Determination date | 14 July 2008 |
| Member | M Urlich |
| Representation | D Chesterman ; K Stretton |
| Location | Auckland |
| Parties | A v B & C |
| Summary | SEXUAL HARRASMENT – CONSTRUCTIVE DISMISSAL – Applicant claimed unjustifiably constructively dismissed following respondent’s failure to fully and fairly investigate complaint of sexual harassment by co-worker (“D”) – Respondent a partnership between (“B”) and (“C”) – Respondent argued fully and fairly investigated applicant’s complaint – Respondents alleged applicant acted in sexually provocative manner in workplace and dealings with applicant fair and reasonable – Authority commented that striking similarity of respondent’s witnesses filed evidence undermined credibility of evidence and did not assist investigation – No provision for sexual harassment complaint procedure in employment agreement (“EA”) – No sexual harassment prevention policy in place – Work rules provided guidelines for appropriate conduct but did not deal with sexual harassment – Applicant raised complaint with B about D’s conduct during work Christmas party – Details of complaint not provided – B then generally admonished staff for inappropriate conduct during Christmas party and suggested staff responsible apologise to those offended – D approached B and C and made apology that “might have said something which might have upset somebody” – B recorded that understood apology to relate to applicant or her guest – Respondent sought information from remaining co-workers (“E”) and (“F”) who alleged applicant had complained to them about D’s conduct but had not witnessed any inappropriate conduct – F continued to speak to applicant about complaint and relayed information to respondents without applicant’s knowledge – When applicant and support person (“G”) first met with respondents, not told investigation had commenced or that tentative conclusion formed complaint not genuine – Applicant provided written complaint that D made sexually explicit proposal and grabbed her breast during work hours – F said had not seen incident when asked by applicant in front of D – Applicant then claimed during Christmas function D approached her and made sexually explicit request – Applicant told D that would tell C about incident and D replied C would not believe her – D denied alleged conduct occurred and told respondents that applicant acted in sexually provocative manner in workplace – Following meeting C alleged observed conduct she interpreted as sexually provocative – Staff meeting immediately called where staff advised sexual harassment unacceptable and provocative sexual conduct and false complaints also unacceptable and would have serious consequences – Applicant refused to attend mediation proposed to resolve issue – C raised concerns with applicant regarding conduct she saw as sexually provocative – Following heated discussion applicant left workplace – Medical certificate provided next day stating applicant not fit to work for at least one month – Final warning issued for “unauthorised leave, stress, false accusations etc” – Applicant also informed that C had obtained opinion from doctor that applicant suffering from “Borderline Personality Disorder” –application by applicant – Authority declined B, C and D application for urgent direction to mediation in response to personal grievance application – Application filed by B, C, D, E and F where problem outlined as sexual harassment, false allegation etc by applicant – Parties directed to mediation and subsequently all claims filed against applicant withdrawn – Authority found test for sexual harassment subjective in sense that perception of complainant and observable effects on him or her is what an employer is required to seriously consider in investigating complaint – Not for employer to substitute own judgment of what constitutes sexual harassment in workplace – Authority satisfied applicant subjected to some behaviour of sexual nature from D during Christmas function and behaviour unwelcome and offensive – Authority unable to conclude on other alleged sexual harassment as not sufficiently specified – Certain facts not disputed – D said something to applicant which could not be overheard, applicant told E and F about comment during evening and that it was offensive, complaint raised with B next working day – Actions consistent with nature of allegations made and intention to complain – D’s recollection of events to Authority very poor and therefore doubts on ability to recall – D accepted intoxicated during Christmas function – Authority found D’s apology to C most likely proffered for offending applicant – Authority found although respondents did not have sexual harassment policy in place had taken reasonable steps to make clear to applicant what should be done if concerned about co-workers – Commencing investigation before complaint was formally made and with applicant’s knowledge or consent tainted investigation with hearsay and unnecessarily complicated issues under investigation – Respondents had no reasonable basis to be concerned after forming conclusion complaint “kept changing” – Respondents concerns never put to applicant for comment – Fact story appeared to change inevitable consequence of commencing investigation before details received – Applicant never told D had made apology – If C concerned about applicant’s alleged sexually provocative conduct meeting should have been properly constituted – Applicant should have received notice of meeting and had opportunity to bring support person – Not appropriate to disclose findings of investigation by way of response to applicant’s opposition to attending mediation – Found no duty to believe complaint, however, duty to inquire fairly and reasonably into facts of complaint – Issuance of final written warning fell short of duty to conduct disciplinary action fairly and reasonably – Statement that C’s doctor had formed opinion that applicant had Borderline Personality Disorder misleading – Medical opinion required familiarity with symptoms and formal diagnosis – Authority accepted doctors evidence of informal discussion and suggestion there may be an underlying disorder – No opinion or diagnosis given – Reasonably foreseeable employment would end – Authority satisfied breaches of duty ended employment relationship – Unjustified constructive dismissal – REMEDIES – No credit to respondent claim applicant’s behaviour amounted to sexual harassment when nothing raised prior to complaint being issued – No contribution – Applicant claimed suffered stress, lacked of motivation, and became insecure and self-conscience since allegations of sexually provocative conduct made – Also claimed could not continue apprenticeship because of personal allegations and felt too ashamed to try re-enter trade in small community – G gave evidence that applicant’s self confidence had plummeted, physically distressed and demeanour had changed to an extent not seen before – Costs reserved |
| Result | Application granted ; Reimbursement of lost wages ($5040) ; Compensation for humiliation etc ($15,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA schedule 2, Clause 10(1);ERA s103A;ERA s108;ERA s117(2) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW [1994] 1 ERNZ 168;Turks Poultry Farm Limited v Adkins [1996] 1 ERNZ 374 |
| Number of Pages | 19 |
| PDF File Link: | aa 248_08.pdf [pdf 67 KB] |