Sexual Harassment, Dismissal and Whether to Suspend

A recent Employment Relations Authority (ERA) decision, Kinzett v Fire & Emergency New Zealand (FENZ), offers critical insights regarding the handling of allegations of sexual harassment and whether suspension is a necessary step while an investigation is undertaken.

Russell Kinzett, a long-serving firefighter of more than 30 years, faced serious workplace difficulties with two co-workers, leading to mutual complaints. FENZ appointed an independent investigator who found breaches of FENZ policies by all parties involved, including sexual harassment and bullying by Mr. Kinzett.

On the completion of the independent investigation, FENZ conducted their own disciplinary investigation. They put allegations of serious misconduct to Mr Kinzett for him to respond to. Mr Kinzett admitted saying all but one of the things he was accused of saying. His explanation was that it was “locker talk” and it couldn’t be considered sexual harassment because he wasn’t attracted to the two complainants. He claimed he hadn’t had sufficient training to understand, in the modern workforce, that this type of ‘banter’ was no longer deemed appropriate. When FENZ reached the conclusion that the allegations were substantiated they proposed to dismiss Mr. Kinzett and gave him the opportunity to respond to this proposal before finalising the decision to dismiss.

One of the pivotal issues in this case was FENZ’s decision not to suspend Mr. Kinzett during the disciplinary process. Despite the serious nature of the allegations, including sexual harassment, Mr. Kinzett was allowed to perform his usual duties for an extended period. It took 14 weeks and six days from receiving the independent investigator’s report to dismissing Mr. Kinzett.

In determining whether the dismissal was unjustified, the ERA concluded that the decision not to suspend undermined FENZ’s later claim that the trust and confidence essential for the employment relationship had been fundamentally eroded. On this basis the ERA said Mr. Kinzett was unjustifiably dismissed. He was reinstated to his position, required to undertake training about sexual harassment and awarded $12,000 for hurt and humiliation which was reduced by 20% for his contributory behaviour.

This is an important message for employers. If the allegations are severe enough to warrant dismissal, it is prudent to consider suspension. There is a caveat to this. An employer must consider alternatives to suspension prior to reaching a decision to suspend. If there are temporary measures that can be put in place to maintain workplace safety and integrity these should be considered. Suspension, while not obligatory, can be a critical step in demonstrating the seriousness with which an employer treats such allegations.

If you are needing to decide whether to suspend an employee please contact one of our Consultants for guidance on your rights and obligations.