| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 79/10 |
| Hearing date | 15 Dec 2009 |
| Determination date | 30 March 2010 |
| Member | P Montgomery |
| Representation | C Heeney (in person) ; C Fisher |
| Location | Christchurch |
| Parties | Heeney v Frame & Mirror Ltd t/a Eco Frame & Mirror |
| Summary | SEXUAL HARASSMENT - UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant claimed resignation was constructive dismissal following bullying and sexual harassment by respondent’s director (“P”) - Applicant claimed relationship with P oscillated between cordial and hyper-critical - Claimed subjected to persistent and unreasonable criticism and P gave contradictory instructions - Applicant claimed as P walked behind him touched his buttocks - Claimed P then said “That was an accident by the way. I wouldn’t want to be getting a letter in the post” - Applicant claimed P touched applicant’s genital area in course of taking tape measure from applicant’s tool pouch - Claimed P than said “I better be careful about doing that” - Applicant claimed while P showing him correct way to insert wall plug P made comment applicant took to be reference to sexual act - Applicant gave P letter outlining concerns about sexual harassment - Parties discussed matter, P apologised and agreed to rearrange work area to create more space between work stations - Applicant took back letter of complaint - Applicant refused to follow supervisors instruction to cease using MP3 player in workshop - P claimed when requested applicant cease using MP3 player applicant became verbally abusive and intimidating - Applicant resigned - Authority found incidents amounted to sexual harassment as behaviour unwelcome and offensive to applicant and had detrimental effect on employment - However, found applicant accepted respondent’s apology and undertaking to resolve issues - Found resignation not based on breach by respondent but rather result of applicant’s refusal to follow lawful and reasonable instruction - Applicant resigned - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - Applicant initially hired on basis of one month’s work with possibility of continuing employment - No written employment agreement - Found failure to provide written employment agreement caused applicant high level of anxiety - Found anxiety exacerbated by P’s style of dealing with applicant - Applicant suffered unjustified disadvantage - Remedies - No contributory conduct - $2,000 compensation appropriate - COSTS - Applicant self represented - Applicant sought $1,000 expenses - No invoices provided - Authority found costs to follow event - Found given respondent’s success in defending constructive dismissal claim costs to be modest - Respondent to pay applicant $200 contribution to expenses - Framer |
| Result | Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($2,000) ; Disbursements in favour of applicant ($200)(Expenses)($70)(Filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s108;ERA s122 |
| Number of Pages | 12 |
| PDF File Link: | ca 79_10.pdf [pdf 39 KB] |