This month’s column is about sexual harassment, or more precisely, what it isn’t.
It would be fair to say that many employers struggle with employee complaints relating to sexual harassment, bullying and racial discrimination, as complaints from employees in these areas can be quite subjective. Due to the serious nature of such complaints, employers should carefully balance the needs of the complainant and the accused to ensure fairness to both. The repercussions of getting it wrong in either case can be devastating.
An Employment Relations Authority (Authority) case from 2015 indicates just how wrong an employer can be. Out of respect for the employee wrongly accused of sexual harassment in this case, and whose name was subsequently cleared by the Authority decision, we will refer to him simply as ‘Mr K.’
Mr K was employed as a supervisor for a company, Programmed Facility Management NZ Limited (PFM), that provides property maintenance services to clients, including the New Zealand Government. Mr K’s role involved him visiting Housing New Zealand properties to inspect them for maintenance requirements.
In July 2015, while waiting for his car to be serviced, he was introduced to a previously unknown co-worker, Ms N, who was also waiting for her car to be serviced. As Mr K’s car was ready first, Ms N asked for a ride back to the office with him. During the drive, the two chatted, and Ms N texted Mr K her phone number. He suggested they stop for coffee, however, Ms N declined. Ms N’s subsequent complaint also suggested that Mr K had taken the long way back to the office so he could continue chatting, although Mr K denied this, saying it was the most efficient route due to traffic.
The following day, Ms N mentioned to the operations manager that she had felt the interaction was inappropriate. The operations manager suggested she put her concerns in writing, which Ms N did via email, stating …I found Mr K very friendly, although at times felt a bit uncomfortable with his comments as although they could be construed as being friendly – I did feel they were inappropriate. The remaining three sentences of the email mentioned the offer of coffee, the longer route taken to the office and that she felt quite awkward. Mr K was suspended and then dismissed for sexual harassment, following a brief disciplinary investigation.
Sexual harassment? Really? Section 108 of the Employment Relations Act 2000 (‘Act’) defines sexual harassment. The only sections that could be relied on in this case were ss 108(b)(i) or (iii) which, respectively, prohibit: (i) the use of language (whether written or spoken) of a sexual nature; or
(iii) physical behaviour of a sexual nature…[which]directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) and that, either by its nature or through repetition, has a detrimental effect on that employee’s employment, job performance, or job satisfaction. Would any right-minded person seriously consider one colleague suggesting coffee to another, to come within these definitions?
To make matters considerably worse, the employer got the disciplinary process completely wrong. A fair process in employment law terms is outlined in s 103A of the Act and is based on the principles of natural justice (see p 39, WBN June/July 2016 for a basic outline). One of those principles is that an employer must provide an employee with all relevant information that the employer might rely on when making a final decision in a disciplinary matter, and allow the employee the opportunity to comment on that information.
In this case, despite Mr K’s lawyer requesting all relevant information, PFM did not even provide Ms N’s brief email until documents were filed with the Authority, long after Mr K had been dismissed. PFM also made the decision to dismiss on other information not provided to Mr K such as an assessment that Ms N was not an overly-sensitive person due to her farming background and that Mr K lacked credibility because his lawyer did most of the talking at the disciplinary investigation. Given the seriousness of the allegations and the fact the Mr K was a non-native English speaker, the latter was held to be particularly unfair.
Mr K was awarded six months’ lost remuneration and $20,000 compensation for hurt and humiliation. These awards are quite high for Authority remedies, however, it hardly seems sufficient given the impact the dismissal for sexual harassment had on Mr K.
Mr K was so ashamed of the situation, that he did not tell his daughters and pretended to continue going to work each day. When the daughters found out about the dismissal from others at the family’s church, they became very distrustful of their father, which caused him additional angst and stress. He withdrew from the voluntary community projects he and his wife were involved in and came close to suffering a complete mental breakdown—all over suggesting coffee to a colleague.
By no means am I suggesting that sexual harassment complaints not be taken seriously. There are some very real and traumatic cases that would unquestionably warrant summary dismissal. However, if the employer in this case had received even a modicum of sensible legal advice before acting, this entire sorry matter could have been avoided.