| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 499 |
| Hearing date | 10 Aug 2011 - 24 Aug 2011 (3 days) |
| Determination date | 21 November 2011 |
| Member | R Arthur |
| Representation | P Kemp (in person) ; M Smyth |
| Location | Auckland |
| Parties | Kemp v Unifrom Group (Auckland) Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed constructively dismissed by respondent as result from sexual harassment, harsh treatment and unnecessary consultation about restructuring – Respondent claimed applicant resigned in order to spend more time with children – Applicant claimed sexually harassed by respondent director (“G”) on two occasions – First incident related to dinner in restaurant in which applicant claimed invited to under misleading circumstances and G engaged in inappropriate gestures and conversation of sexual nature – Second incident related to conversation with G in boardroom in which applicant claimed G asked applicant to set on G’s knee and G said applicant was a tease – Authority found applicant’s evidence that G’s conduct at dinner amounted to sexual harassment unconvincing – Found applicant’s evidence did not establish inappropriate physical acts occurred at dinner – Found even if applicant’s evidence accepted regarding boardroom conversation alleged conduct not sexual harassment – Applicant identified number of actions by respondent directors which applicant claimed were harsh or unfair treatment – Found evidence established G’s manner or style of work could be abrasive and demanding – G accepted spoke loudly to employees about getting details correct – Found G’s approach not breach of applicant’s terms of employment – Found no breach of duty due to harsh or unfair treatment – Applicant claimed told three months prior to resignation could be made redundant and called to meetings about possible restructuring – Found no breach of applicant’s terms of employment by consulting applicant about possible restructuring – Applicant claimed felt overwhelmed, exhausted and extremely distressed by respondent actions – Applicant produced doctor certificate showing had elevated blood pressure and possible ulcer – Found doctor’s assessment of applicant’s health did not meet requirements of legal evidence necessary to establish applicant’s ill health caused by respondent breach of duties – Found applicant did not establish necessary chain of causation for constructive dismissal – No constructive dismissal – Sales Administrator |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s108;ERA s174 |
| Cases Cited | Managh t/a John Managh & Associates & Cafe Down Under Ltd v Wallington & Crawford [1998] 2 ERNZ 337;Wellington, Taranaki and Marlborough Clerical IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95 |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Auckland_499.pdf [pdf 55 KB] |