| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 472/10 |
| Hearing date | 26 Jul 2010 |
| Determination date | 08 November 2010 |
| Member | V Campbell |
| Representation | G Bennett ; E Butcher |
| Location | Auckland |
| Parties | Kumar v Baycorp (NZ) Ltd |
| Summary | RACIAL HARASSMENT – Applicant claimed manager (“L”) made comment that applicant spoke better English than some other Indians during meeting to discuss applicant’s performance – Applicant claimed comment constituted racial harassment – Authority found comment did not meet statutory definition of harassment or standard required in respondent’s harassment policy - Authority satisfied comment not made in hostile or contemptuous way and did not ridicule Indian race or applicant – Found while comment may have caused applicant offence, found comment made in positive way – Found comment did not have effect of disadvantaging applicant in employment - No racial harassment - UNJUSTIFIED DISADVANTAGE - Applicant claimed suffered unjustified disadvantage when put on performance improvement plan (“PIP”) - Applicant claimed PIP process being used to make him resign – Authority found PIP process not disciplinary in and of itself – Found PIP process set up to ensure applicant improved performance in structured way and did not put employment in jeopardy - Applicant claimed should not have been subject to PIP given performance review indicated was meeting expectations – Authority satisfied L changed view on performance reflection and taking into account error applicant had made - Found L had genuine concerns about applicant’s performance that entitled to address with him - Found L discussed her concerns with applicant and prospect of entering into PIP process twice before took step of drafting PIP document - Found L discussed document with applicant - Found applicant given full opportunity to have input into process and measurements set out in document – Found applicant did not raise any concerns about process or document – Found applicant signed document indicating agreed with performance indicators and outcomes - No unjustified disadvantage - UNJUSTIFIED DISMISSAL – Constructive dismissal – Since lodging Statement of Problem applicant resigned – Applicant claimed resignation was constructive dismissal – Applicant claimed respondent breached duty owed to him when subjected him to racial harassment – Claimed PIP process constituted breach of duty - Claimed respondent’s actions culminated in situation where lost trust and confidence in respondent – Authority already found applicant not subject to racial harassment or unjustified disadvantage – Found no breach of duty by respondent - Found applicant’s resignation not reasonably foreseeable as result of respondent’s actions - Found evidence did not suggest respondent embarked on PIP process with view to making applicant resign or to dismiss him – No constructive dismissal - Payroll Administer |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s109 |
| Cases Cited | Bilkey v Imagepac Partners unreported, Colgan J, 7 Oct 2002, AC 65/02;Mason v Health Waikato Ltd (in respect of the former Waikato Area Health Board) [1998] 1 ERNZ 84;McCosh v National Bank of New Zealand Ltd unreported, Colgan J, 13 Sep 2004, AC 49/04;NZ Storeworkers etc IUOW v South Pacific Tyres (NZ) Ltd [1990] 3 NZILR 452 |
| Number of Pages | 8 |
| PDF File Link: | aa 472_10.pdf [pdf 38 KB] |