Employment case notes (ET 114)

Nathan v Ports of Auckland Ltd—ERA, Auckland, July 2006

Evidence of ongoing racial harassment did not lead the Employment Relations Authority to uphold the complaint of an employee (A) dismissed for the assault of a co-worker (B).

Employee A and B worked for the company as stevedores in the same team. In February 2005, employee B complained that employee A had threatened him. While employee A conceded he had made a threat, he said it was because he was sick of constant racist remarks from employee B. The two men subsequently came to some type of resolution over the issue.

However, employee A claimed employee B continued to make racist comments. One night in October 2005, employee A lost his temper and assaulted employee B. Employee B apologised to employee A, but also complained to management.

The company initiated two investigations: one into the assault of employee B, and one into the racial harassment of employee A. Both employees were suspended and warned they might be dismissed. But, while employee B received a final written warning for six months and was moved to another work area, employee A was dismissed.

Employee A claimed he had been disadvantaged because he had not been presented with employee B’s version of the assault, and that his claims of racial harassment had not been properly investigated.

But the authority found the company had conducted a full and fair inquiry into the allegations against employee A, as well as into the assault on employee B. It also found that, although employee B’s comments had been provocative and unacceptable, the company had unequivocally condemned such conduct and had advised staff of the process to follow should such conduct occur. Employee A had not followed this process.

The authority decided the conduct of employee A did constitute serious misconduct warranting dismissal and did not have a personal grievance. However, it also suggested that the company should introduce a written racial harassment prevention policy into the workplace. Costs were reserved.

Harcombe v Bakers Delight (NZ) Ltd—ERA, Auckland, July 2006

The Employment Relations Authority upheld a woman’s complaint that when her employer made a permanent appointment to her job, while she was on parental leave, it was a breach of their employment agreement.

When beginning her employment the woman had signed a comprehensive employment agreement which had a specific provision safeguarding her job after a return from parental leave. In 2005 she went on parental leave for a year, with management confirmation of those entitlements.

Originally a temporary appointment was made to fill the woman’s position, but after that person left unexpectedly, the company appointed another employee to the woman’s position permanently. The woman was not consulted about this. When she accidentally learned about it, she entered into correspondence with the company’s new manager about the situation. While the new manager offered the woman another job, which she agreed to consider, the woman’s concerns grew and led her to turn to the authority to resolve the situation.

The authority found the company had breached the Parental Leave and Employment Protection Act. By appointing another person to the woman’s position, the company had effectively dismissed her—despite the agreement to preserve her job. The company had also breached their statutory duty by failing to try and resolve the issue expeditiously. However, the woman had eventually been offered her job back and the authority found the company were genuinely sorry about what had happened.

The authority awarded the woman $3000 compensation for the harm she suffered because of the breach of the PLEPA, and the company was ordered to respond to the woman’s application for reimbursement of costs.

Hand v McCrostie Builders—ERA, Christchurch, July 2006

The Employment Relation Authority awarded almost $12,000 to an employee who claimed she was constructively dismissed after complaining she was being sexually harassed by a colleague.

When the woman started work for the company her partner also worked there. Shortly after he left, the woman was approached by a fellow employee who made a number of sexually suggestive comments about, and advances towards, her. The woman was upset and complained to her employer in a meeting the next day.

After the meeting, the employer made some enquiries and decided there was little independent evidence to back up the woman’s claims. However, he gave the other employee a warning letter and told him to keep his distance from the woman at all times.

Over the next few months several other incidents, involving the other employee, occurred, leaving the woman distressed. She mentioned these incidents to her supervisor and her employer and, eventually, sought help from Workplace Support. After yet another incident with her colleague, the woman resigned.

The authority found the behaviour of the woman’s colleague amounted to repeated sexual harassment. It also found the company’s investigation process was neither full nor robust, and fell well short of its obligations. Furthermore, it found the steps taken to prevent the behaviour were poorly conceived and executed.

As a result, the authority found the woman had been constructively dismissed. She was awarded $1,950 for a shortfall in her wages, since being forced to take up other employment. She was also awarded compensation of $10,000. Costs were reserved.

Prince v B&M Entertainment Ltd t/a Mermaid Bar—ERA, Wellington, July 2006

An employee’s claim of unjustified dismissal was upheld by the Employment Relations Authority, despite finding the man’s behaviour had contributed to the situation leading to his dismissal.

The man worked at the bar as a bar manager. Only a few days after starting his job, he touched one of the bar’s dancers on the buttock while trying to get her attention to open a safe door. He claimed it was an accident due to the limited space in the area where they were standing. However, the dancer was upset by the action and felt it was deliberate and inappropriate.

Her complaint, backed up by the evidence of a witness, lead to a hurried investigation by the bar owners. The dancer refused to accept an apology from the man. This led to the man’s dismissal for serious misconduct as his employer decided the man could not be trusted after being the subject of a sexual harassment complaint so early in his employment. The man challenged this: he claimed it was not sexual harassment and he had been treated unfairly.

The authority found the man’s dismissal was unjustified because the decision was predetermined, the bar owners’ investigation was inadequate, and the existence of alternatives to dismissal were not properly considered.

However, the authority also found the man’s behaviour contributed to the situation because it was serious and the man knew it was inappropriate. This impacted on the remedies claimed by the man. The authority awarded three months lost wages, but turned down the man’s claim for compensation. The bar owners were also ordered to pay him costs of $2030.

Bisson & Ors v Air New Zealand Ltd—ERA, Christchurch, July 2006

Four men dismissed by Air New Zealand’s engineering services operation because of their internet use have had their cases upheld by the Employment Relations Authority.

After a 2004 review of the internet use of all employees in the division, management developed concerns about the internet use of some employees. The review results indicated the defendants had spent excessive time on the internet and had accessed inappropriate websites.

The men all attended formal investigation and disciplinary meetings at which they were presented with a range of company policy documents, relating to conduct and internet access, and were asked to explain their actions. All of the men claimed that they a) were unfamiliar with many of the websites listed; b) had provided their log-ons and passwords to other staff members out of necessity; and c) were not familiar with the policies they were presented with.

However, the company did not accept their explanations and said the policies provided employees should not disclose their user ID or password to anybody else. If they did, they were responsible for the sites accessed on their computer. The men’s conduct was considered so severe they were all summarily dismissed.

The authority did not accept the claim the men had breached the company’s policies so seriously there was no alternative but to dismiss them. It found the explanations of the men were not fully investigated, and there was little evidence the policies had been explained to them before they were given internet access.

For these reasons, along with the company’s failure to stick to its own procedures, the authority found each of the men had been unjustifiably dismissed. It determined they should all be reinstated to their former position, and paid a range of sums in compensation and for wages lost because of their personal grievances. Costs were reserved.

Davis v Portage Licensing Trust— Employment Court, Auckland, May 2006

Three armed robberies left an innocent employee suffering from post traumatic stress disorder (PTSD), but the breach of duties by his employer contributed to that injury, according to an Employment Court decision.

Late in 1998, the man was employed as a barman/cook by a tavern owned by the Trust. He had only been working at the tavern for a couple of months when he was involved in three violent armed robberies in a row. Nobody was apprehended for any of these.

After the first robbery the staff involved recommended security measures, but only a few measures were adopted before the next robberies, and the staff were not given any relevant training. After the third robbery the employee was left distraught and terrified, and did not return to work again.

The Trust provided counselling and financial support, but when his period of paid sick leave expired that assistance stopped, leaving the man distressed and financially desperate. He attempted to start work again, for a different employer, but was unable to sustain his employment.

The man argued his employers bore some responsibility for the loss of his health and his ability to work. However, his employers claimed they had done all they could to help him and his PTSD was the result of other events in the man’s life, not the robberies.

Judge Travis found the Trust should have known there was a real and substantial risk of an armed robbery at the tavern and yet failed to provide a large number of reasonable security measures before the first robbery. Furthermore, the Trust failed to take all reasonably practicable steps to try and prevent harm to their staff immediately after the first robbery and, again, after the second one. Had it done so, the subsequent robberies may not have happened or their effect on the employee may have been reduced.

The judge found these failings, on the part of the Trust, were the material cause of the man’s ongoing PTSD and constituted a breach of duties. As a result, the judge awarded the man remuneration for five and a half years of lost earnings, remuneration for future economic loss for the next 18 months, past medical expenses for PTSD, leave to claim for future PTSD expenses, and $45,000 for non-economic losses. Costs were reserved.

—Selected and written
by Miriam Bell

Previous Employment Case Notes

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