| Summary |
UNJUSTIFIED DISMISSAL – SEXUAL HARASSMENT - Applicant claimed sexually harassed by co-worker (“X”) and resignation constituted constructive dismissal – Applicant alleged X spied on applicant in changing rooms, grabbed buttocks on two occasions and often used language with heavy sexual overtones – Respondent argued every allegation taken seriously, appropriately addressed and dealt with, applicant consulted on feelings, potential outcomes and actual outcome of each incident – Authority found allegations of sexual harassment at lower end of scale, if made out, but still serious – Found applicant accepted apology from X following two incidents – Found following respondent investigating allegation X touched applicant’s stomach, applicant advised did not regard matter as very serious – Applicant claimed respondent did not consider asking for witness co-worker’s (“C”) evidence – Respondent argued confidentiality important and applicant had not disclosed C witnessed incidents, even though C acted as support person – Authority found respondent would have interviewed C if knew was witness – Authority doubted would have affected respondent’s actions, as respondent issued formal warnings to X and rearranged rosters to ensure supervision – Found C’s input would not have brought to light more serious allegations which may have led respondent to take more drastic disciplinary action – Applicant hit by ball thrown by X when X thought applicant going to catch ball – Parties agreed boyfriend’s call advising applicant resigned could not amount to resignation – Respondent gave X formal written warning – Applicant resigned - Authority found ball throwing incident minor and trivial and did not justify resignation – Found even given earlier incidents, those were formally investigated and supervision was in place – Found respondent fulfilled obligations and acted in good faith – Found respondent acted in accordance with obligations in dealing with applicant’s sexual harassment complaints – Found applicant’s resignation not foreseeable, particularly in light of efforts made by respondent to ensure no repetition occurred – No constructive dismissal – Retail assistant |