| Summary |
SEXUAL HARASSMENT – RACIAL HARASSMENT – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant’s sexual harassment allegation that co-worker (“A”) rubbed crotch against applicant’s shoulder while using expletives - Applicant claimed co-worker (“P”) laughed and commented on A’s actions - Applicant’s racial harassment allegation that subjected to racist comments by co-workers and Manager (“B”) – Applicant was Indian born in South Africa – Applicant alleged A asked customers whether attacked by Indians and Asians; another co-worker said Pacific Islanders were coconuts; A and P said Indians dirty and filthy; and B implied disliked Fijian Indians and that applicant sexist because South African - Applicant claimed further instances of bullying and undermining occurred - Applicant went on sick leave – Medical certificate stated stress as reason – Respondent unable to contact applicant for over a week – Ten days after sick leave began, Human Rights Commission contacted respondent regarding racial harassment claim by applicant – Applicant raised bullying complaints and several of alleged racist incidents with respondent’s Chief Executive (“P”) – Several days later, applicant raised sexual harassment complaint and resigned – Authority found s109 Employment Relations Act 2000 (“ERA”) defined racial harassment – Found one aspect of definition that was from “employer or representative of the employer” – Found “representative” of employer must be someone with either authority over employee alleging grievance, or in position of authority over other employees in workplace - Found only B fitted definition of “representative of employer” – Applicant claimed B said applicant had sexist attitude towards women because of his nationality – Authority found B considered applicant’s attitude towards women was detrimental and affected sales – Found B entitled to raise issue with applicant – B denied making derogatory references to Indians or Fijian Indians but said made remarks that Fijian Indians hard bargainers – Authority found applicant misinterpreted B’s comments - Found applicant’s complaints about co-workers fell under s117 and s118 ERA, requiring applicant to have complained to employer then the respondent failing to take reasonable steps to prevent it reoccurring – Authority accepted respondent’s submission that several comments about Pacific Islanders – Authority found applicant did not advise respondent of any of alleged racial harassment by co-workers – Racial harassment claims failed – Authority found no doubt alleged sexual harassment incident occurred – Found clearly offensive, unwelcome and had detrimental effect on applicant’s employment – Found remaining issue whether applicant referred it to employer or representative of employer – Applicant claimed advised staff member and senior employee (“S”) about incident with A – Authority found insufficient evidence applicant reported incident to staff member – Authority found possible S somehow aware of incident, however, not persuaded S knew details of incident – Authority found first occasion applicant raised sexual harassment incident with employer was with P when resigned – Found employer not notified before resignation, so no opportunity to investigate and take practicable steps to prevent recurrence –Sexual harassment claim failed - Authority found alleged incidents of undermining and bullying capable of interpretation other than applicant’s perceptions – Found B sufficiently dealt with applicant’s concern that co-worker did not shake hand when introduced – Authority dismissed claim that staff privy to applicant’s performance details, because form open to all salespeople – Authority dismissed claim applicant undermined as cars sold to other customers, because was general practice and not directed at applicant – Found applicant disciplined appropriately when made mistake - Found matters raised were matters respondent entitled to raise – Found on one occasion B raised voice was followed by apology – Found insufficient evidence applicant’s tax information given to employees who had no right to information – No constructive dismissal - Car salesman |