| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 33/09 |
| Hearing date | 1 Dec 2008 |
| Determination date | 05 February 2009 |
| Member | D King |
| Representation | H White ; P Neumegen |
| Location | Auckland |
| Parties | Ogilvy v Warkworth Hospital Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by formal written warning for sexual harassment - Behaviour complained of as sexual harassment was that applicant pulled chair up next to a co-worker’s (“T”) chair and lay on chair looking at T - T perceived action to be sexual - Other general complaints that applicant invaded co-workers’ personal space - Applicant informed complaints made about patient care but not told of sexual harassment complaint - Non-disciplinary meeting held to discuss complaints - Meeting unsuccessful, with discussion becoming heated - Authority found applicant unable to properly address complaints as allegations not put to applicant systematically - First indication applicant had that sexual harassment complaint made was when received written summary of allegations following meeting - Applicant raised personal grievance regarding respondent’s behaviour - Applicant then issued with formal warning for sexual harassment - Authority found issuing of warning unjustified - Authority found allegation not put to applicant to answer and behaviour did not constitute sexual harassment - Authority noted finding did not mean invasion of personal space could not in some circumstances constitute sexual harassment - Applicant unjustifiably disadvantaged by warning for sexual harassment - UNJUSTIFIED DISMISSAL - Constructive dismissal - Respondent informed applicant would no longer be working night shifts and instead would work three days per week under supervision with arrangement to be reviewed within three months - Applicant claimed unilateral lowering of pay rate and removal from night shift was repudiation of significant terms of employment agreement (“EA”) and constituted dismissal - Authority found position offered inferior alternative on lesser terms and conditions - Found applicant could regard such breach of EA as termination of EA - Dismissal unjustified - REMEDIES - Authority accepted applicant invaded co-workers personal space on occasion - However, agreed to rectify problem when made aware of it - No blameworthy behaviour amounting to contributory conduct - Applicant deeply affected by events - Compensation of $8,000 appropriate - Applicant attempted to mitigate loss - Authority satisfied appropriate case to award more than three months lost wages - Respondent to pay lost wages from date of dismissal to date of hearing less applicant’s earnings for that period - Caregiver |
| Result | Applications granted (Unjustified disadvantage, unjustified dismissal) ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($8,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 11 |
| PDF File Link: | aa 33_09.pdf [pdf 44 KB] |