Is an intern an employee? According to a recent Employment Relations Authority (ERA) case the answer is yes. This decision, along with a general trend on what is deemed to be work is once again in the spotlight.
Managing a sexual harassment complaint in your workplace is one of the most challenging employment matters you can deal with. In addition to the devastating personal impact sexual harassment can have on an individual, the process of dealing with a complaint can be treacherous. It is important to support the complainant through-out the process without it being seen as predetermining that the complaint is proven. This needs to be balanced with the obligations to the accused including the requirements of privacy and confidentiality (for both parties), a full, thorough, and timely investigation being treated as ‘innocent until proven guilty’ while putting in interim measures to ‘protect’ the complainant in the workplace.
A recent Employment Relations Authority (ERA) decision (AKD v Clarence Street Warehouse Ltd  NZERA 255), went some way to clarify the ERA’s approach when it comes to cases of sexual harassment.
Contrary to popular (and mistaken belief) that a proven act or series of acts of sexual harassment in the workplace is all that is necessary to substantiate a claim of ‘sexual harassment’, the decision of Clarence Street Warehouse Ltd emphasises that the spot-light is on the response of the employer once an allegation has been brought to its attention and whether the employer has taken all reasonable steps to prevent a repetition of behaviour alleged.
In this case the employee (AKD) raised with her employer that her Assistant Manager (TDP) had sexually harassed her. She alleged that on 6 August 2020 TDP said an offensive remark to her and later that day he then made an inappropriate gesture. This was on the back of a history of “banter” which was sexual in nature; comments on the employee’s appearance, and other sexualised comments. When the “banter” occurred in the team of male colleagues the employee tried to disengage from it but was sometimes drawn into it. The Department Manager witnessed the 6 August harassment and confirmed the employee’s version of events, and was aware of the “banter”.
The employer took appropriate steps to investigate the complaint, and wisely had an independent person review the investigation. The employee was unhappy with the investigation outcome and after a number of discussions with the employer said she had no option but to resign. She raised a personal grievance claiming unjustified dismissal (constructive dismissal), unjustified disadvantage and sexual harassment. The employee had not returned to work after raising the complaint (except for one day), and there were no further sexual harassment incidents raised after the 6 August incident. These two factors are important.
The Employment Relations Act (2000) specifically references sexual harassment and sets out what an employer must do if a complaint is raised. It is important to note the Act differentiates between a complaint about a co-employee, client or customer of the employer, and when it comes to sexual harassment from an employee’s employer or a representative of that employer. The Act requires the following:
(a) Where an allegation of sexual harassment concerns the behaviour of a fellow employee, the employee must first raise it with the employer i.e., make a complaint.
(b) The employer must enquire into the complaint.
(c) If the employer is satisfied that the complaint has substance the employer must take such steps as are necessary to prevent any repetition of the behaviour.
(d) If the behaviour then continues and the employer has failed to take steps to address it, the employee will have a personal grievance based on sexual harassment.
The Authority considered whether the employer had followed the required legislative steps and determined they did. Of critical importance was the fact the employee had not returned to work, therefore the Authority concluded that the alleged behaviour had not actually continued after the complaint had been made and so the personal grievance claim of sexual harassment must fail. Although it was found that the act(s) of sexual harassment on 6 August had in fact occurred, and the employee had also been subjected to sexual harassment before this date, the complaint was not raised until 6 August, at which time the employee affected had left the workplace and did not return.
The personal grievance claim of unjustified disadvantage was based upon the employee’s claim of an earlier complaint in June 2020 not being investigated and the employer failing to ensure her confidentiality after the August 2020 complaint. The employer said no complaint was raised in June and the Authority agreed. The Authority also determined the employer did not breach any privacy or confidentiality obligations it had to the employee.
The last matter to determine was the personal grievance claim of constructive dismissal. The employee claimed there were two breaches of the employer’s obligations that forced her to resign:
- The employer failed to provide her with a safe working environment in that the Assistant Manager sexually harassed her; and
- The employer did not maintain trust and confidence because of the way it dealt with the complaint, including the investigation and the subsequent attempts to resolve it.
The employer’s obligation is to take ‘all reasonable practical steps to maintain a safe workplace.’ The Authority concluded the risk of harm from sexual harassment was foreseeable. The Department Manager knew about the ‘banter’. The employer had taken some generic steps to prevent harm by having a sexual harassment policy and then proceeding to train some managers in identifying and dealing with bullying and harassment. However, the employer could have taken active steps to intervene, but did not, when the sexualised conversations were occurring.
Finally, the employer had concluded the employee had at times actively participated in the ‘banter’, inferring the employee was in part responsible. The Authority concluded the employer incorrectly reached this conclusion and did not put this to the employee as a possibility, therefore not giving her the opportunity to respond.
An important and noteworthy comment was made by the Authority member in reaching his decision: He stated
“I must make the point, even if AKD (the employee) did discuss matters of a sexual nature that were offensive or unwelcome including participating in such conversations with TDP (the Assistant Manager), this does not mean what he did or said to her was excused or okay, as CSW (the employer) seems to suggest.”
The constructive dismissal claim was upheld. The employee was awarded $30,000 in compensation, 12 months lost wages, and costs as a result.
We will be discussing sexual harassment complaints and investigations in our Free Seminar in November. You can book your place here.