| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 220 |
| Hearing date | 16 Mar 2010 - 17 Mar 2010 (2 days) |
| Determination date | 23 May 2011 |
| Member | E Robinson |
| Representation | W Reid ; M Dew |
| Location | Tauranga |
| Parties | Tanner v Todd & Pollock Haulage (2006) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed resignation was constructive dismissal - Applicant claimed respondent breached duty to provide safe workplace by failing to deal properly with sexual harassment and workplace bullying complaints – Claimed suffered stress and unable to return to work as result - Applicant offered employment by one of respondent’s managers (“F”) - Applicant had met F through partner (“S”) who worked for respondent – Applicant and F initially had good working relationship –Applicant’s relationship with S ended following incidents of domestic violence – S ceased employment with respondent - Applicant claimed thereafter relationship with F changed – Claimed no longer socialised outside work, F became abrupt in dealings with her, and would frequently address her by swearing directly at her – Claimed hours reduced and given worst loads to do – Claimed F stopped communicating directly and instead used other staff – Applicant claimed verbally sexually harassed by co-worker – Co-worker spoken to and harassment stopped - Applicant had spoken to Human Resources and Compliance Manager (“H”) about F’s behaviour and stress caused – H spoke with F and advised applicant to seek legal advice – Applicant did receive formal written apology from F for one incident but claimed bullying continued - Applicant went on sick leave and raised possibility of resigning as could not handle situation any more – H undertook full investigation into applicant’s complaints – Applicant remained on paid leave – Parties attended mediation but unable to resolve issues – Applicant resigned - Authority found respondent responded as fair and reasonable employer to applicant’s complaints of sexual harassment – Found respondent did not breach any express or implied contractual duties owed to applicant - Authority found F in sole charge of worksite and was applicant’s direct manager – Found F’s use of foul language excessive even for worksite where was acknowledged was lots of swearing - Found policy of deliberate avoidance by direct manger of subordinate could constitute workplace bullying in some circumstances - Found no evidence to support applicant’s claim work hours reduced – Found evidence supported applicant’s claim given worst loads – Found applicant bullied by F – Found applicant subjected to repeated unwanted and unwarranted behaviour which found offensive, intimidating or humiliating and which resulted in it having detrimental effect on dignity, safety and well-being - Found fair and reasonable employer would have considered addressing F’s behaviour with professional interventions, such as anger management or interpersonal skills courses – Found respondent should have begun full investigation into applicant’s complaints earlier than did – Found by time investigation begun applicant already suffered psychological damage – Found enough information conveyed to respondent for respondent to be aware of risk of injury to applicant – Found was fundamental repudiatory breach of contract by respondent in respect of duties owed to applicant – Found was reasonably foreseeable breach of duty would result in applicant suffering psychological harm – Found breach of duty sufficiently serious to make it reasonably foreseeable applicant would resign – Found applicant unjustifiably constructively dismissed - Remedies – No contributory conduct – Applicant unable to obtain alternative employment due to continuing health issues – Reimbursement of lost wages from resignation date to date of investigation meeting ordered - Parties to determine quantum - Authority found was appropriate case to make award for loss of future earnings – Respondent to pay applicant $16,320 - Found applicant suffered significant distress, resulting in being medically unfit to attend work due to depressive illness and post traumatic stress disorder - $25,000 compensation appropriate – Truck driver |
| Result | Application granted ; Reimbursement of lost wages (Quantum to be determined) ; Loss of future earnings ($16,320) ; Compensation for humiliation etc ($25,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s114 |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31 ; [2002] 2 NZLR 342;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Coastline FM Ltd v Prebble [1992] 3 ERNZ 294;Edmonds v Attorney-General for New Zealand [1998] 1 ERNZ 1;Telecom South Ltd v NZ Post Office Union (Inc) [1992] 1 ERNZ 711 ; [1992] 1 NZLR 275 ; (1991) 4 NZELC 95,352 |
| Number of Pages | 27 |
| PDF File Link: | 2011_NZERA_Auckland_220.pdf [pdf 86 KB] |