| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 354 |
| Hearing date | 11 Apr 2011 |
| Determination date | 09 August 2011 |
| Member | D King |
| Representation | L Darroch ; B Po-Ching |
| Location | Auckland |
| Parties | Kifouani v Rappongi Excursions Ltd t/a Denny's Restaurants |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – UNJUSTIFIED DISADVANTAGE - Respondent denied told applicant salary would increase – Applicant claimed later told by respondent would be paid hourly but wages- continued on salary basis - Respondent claimed only told applicant if continued to spend time away from workplace matter would be looked at – Applicant claimed workload and responsibilities changed without consultation and further training not provided – Authority found no discussion or agreement about salary increase – Applicant claimed access to payroll blocked and respondent failed to provide explanation – Respondent did not have internal payroll system and payroll responsibilities returned to co-worker when returned to work – Found applicant required to perform varying roles and only had access to payroll while performing payroll duties – Found applicant spent a lot of time away from workplace for personal matters - Applicant claimed sexually harassed by co-workers and told by manager (“F”) applicant owed apology – Co-worker (“C”) claimed did not hear respondent tell applicant owed apology rather applicant told needed to be careful how spoke to co-workers – F claimed other employees confirmed applicant discussed sexual matters – F told applicant to stop conversations and should view as warning – Applicant claimed subjected to ongoing sexual harassment from co-worker (“L”) and allegations retaliation to L’s rejection – Applicant met with another manager (“K”) and claimed believed K would tell F of applicant’s concerns – K claimed no meeting with applicant took place – F issued applicant with second warning witnessed by K – Applicant claimed told F exposed to toxic bullying atmosphere instigated by L – Applicant claimed F acknowledged applicant adversely affected by L’s behaviour – F told by L applicant watched pornographic movies at workplace and incident confirmed by other employees – Human resources manager (“P”) interviewed co-workers and told applicant of allegations in K’s presence - Applicant denied watched pornographic movie or left office for personal business – Applicant dismissed for serious misconduct – Applicant claimed did not know what meeting was about – P told applicant would contact police if applicant did not resign – Applicant not provided with substance of complaints or dates and times of incidents and not given opportunity to explain – Applicant claimed many women at workplace had made sexual advances and some had provided contact details – Applicant claimed when new employee started asked applicant if wanted girlfriend – F did not recall comment – Found very unlikely stranger would make comment on first meeting – Found applicant’s dismissal procedurally flawed as applicant not told purpose of meeting, that employment might be terminated or given opportunity to find representation – Found verbal warnings given although no record – Found applicant made offensive sexual comments to co-workers, viewed sexual content and showed L sexual image at workplace – No disadvantage - Found dismissal unjustified but actions constituted sexual harassment – REMEDIES – 100 percent contributory conduct – Compensation not appropriate - Office Administrator |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (100%) ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Auckland_354.pdf [pdf 24 KB] |