| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 468/10 |
| Hearing date | 23 Apr 2010 |
| Determination date | 01 November 2010 |
| Member | P Cheyne |
| Representation | J Moore, E Orlov ; A Higgins |
| Location | Auckland |
| Parties | Tailor v BOF Ltd t/a Moretons Restaurant and Bar |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed resignation was constructive dismissal because of respondent’s breach of duty to provide safe workplace - Applicant complained to respondent that being sexually harassed by respondent’s bar manager (“W”) – Applicant claimed W poked her in the side, placed his hands on her shoulders, and attempted to massage her shoulders and put his arm around her – Applicant claimed W made “rooting” gestures towards other female employees out of their sight – Respondent investigated complaint and W issued with written warning - Dispute as to when applicant informed of outcome of investigation into complaint – Applicant’s evidence preferred – Applicant then claimed W began bullying her – Complaint investigated and W issued with warning – Applicant believed W should have been dismissed – Parties met to discuss issue but unable to reach outcome satisfactory to applicant - Applicant took period of sick leave - Applicant resigned - Clause in applicant’s employment agreement (“EA”) provided respondent would take all practicable steps to ensure safe and healthy work environment for all employees - Found reporting back to complainant on outcome of complaint was reasonable and practicable step to ensure safe and healthy working environment – Found by not reporting back to applicant until weeks after complaint made respondent breached EA – Found no other breaches of obligations owed to applicant – Found breach not sufficiently serious to make resignation reasonably foreseeable - No constructive dismissal - SEXUAL HARASSMENT - UNJUSTIFIED DISADVANTAGE – Authority used powers under Employment Relations Act 2000 to find was personal grievance other than type alleged - Authority found applicant’s employment affected to her disadvantage by unjustified action of employer – Found respondent’s failure to report back in timely manner about first complaint and steps taken to prevent reoccurrence left applicant feeling vulnerable and unprotected – Found applicant suffered considerable stress and anxiety that could have been avoided - Found applicant sexually harassed by W – Found W was representative of respondent – Found some of unwanted touching and “rooting” gesture amounted to physical behaviour of sexual nature that directly or indirectly subjected applicant to conduct that was unwelcome or offensive to her – Found also had detrimental effect on applicant’s job satisfaction - Remedies - No contributory conduct – Found applicant did not lose any remuneration as result of grievances - Applicant provided doctor’s notes and psychological assessment by clinical psychologist – Applicant suffered from sleeplessness, avoidance, low mood, tearfulness, loss of appetite, anger, lack of concentration and other physical symptoms - Applicant prescribed antidepressant and insomnia medication – Applicant accessed counselling and therapy – Authority noted effects on applicant might seem extreme given breach of contract not sufficiently serious to give rise to constructive dismissal but satisfied caused wholly or significantly by respondent’s unlawful conduct - $10,000 compensation appropriate - Sous Chef |
| Result | Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage)(Sexual harassment) ; Compensation for humiliation etc ($10,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s122;ERA s160(3);HSE |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31 ; [2002] 2 NZLR 342;Auckland & Gisborne Amalgamated Society of Shop Employees and Related Trades etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963 ; [1985] 2 NZLR 372 ; (1985) ERNZ Sel Cas 136;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Clear v Waikato District Health Board [2008] ERNZ 646;Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188;Sloggett v Taranaki Health Care Ltd [1995] 1 ERNZ 553 |
| Number of Pages | 13 |
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