ERA rules no compensation for sexual harassment claimantadmin
The woman – whose name was suppressed by the Employment Relations Authority (ERA) – was employed by the unnamed Auckland company between February 7 and April 30 last year.
The woman raised a personal grievance with the ERA on the ground of sexual harassment, and said her resignation amounted to a constructive dismissal.
In her resignation letter she wrote that comments and behaviour of a sexual nature occurred frequently throughout her employment, and had reached a point she could no longer tolerate.
It was the first time the woman had raised a concern about the behaviour or said it amounted to sexual harassment.
The majority of her concerns were with behaviour she described as mockery and attacks on her relationship with her partner, although she also said that throughout her employment she was frequently subjected to other offensive conduct.
The worst of the allegations included an invitation for customers to rank her appearance, comments to customers on her sexy appearance, suggestions she was dressed in a sexual way, and a suggestion that she not put items in her trouser pockets as this obscured the view of her bottom.
Other allegations included frequent references to her relationship with her partner, including the term ‘badoosh’ and ‘doosh’ in reference to her partner or the relationship, suggestions she was going home at lunch time to be ‘banged by badoosh’, questions and suggestive comments about whether she was sexually satisfied, and an offer to service her needs in the evening since her partner was not likely to be home at that hour.
The woman also alleged her bottom was slapped while she was standing on a step ladder, and a showroom employee suggested she was ‘touching herself up’ on an occasion when she was pinning a name badge to her chest.
The woman’s former co-workers denied the allegations, aside from when her bottom was slapped, which a sales representative later apologised for.
ERA member Rosemary Monaghan said she found the woman’s account of the harassment she experienced was materially consistent, as were denials from the other employees and their explanations of events as they saw them.
“I find it unlikely that the employees concerned sought deliberately to harass or otherwise upset [the woman].
“However I find it likely that their banter and joking behaviour went too far.”
Ms Monaghan found the woman was sexually harassed in her employment due to evidence of language or physical behaviour of a sexual nature which was unwelcome and offensive to her, and which by its nature of repetition had a detrimental effect on her employment or job satisfaction.
However, Ms Monaghan said as the woman was not sexually harassed by her employer or a representative of her employer, and as she did not alert her employer to her complaints before resigning, they could not be held responsible.
“[The woman] chose to resign, and not to raise her concerns with [her employer]. I find that, in making that choice she was the party who initiated the termination of her employment,” Ms Monaghan said.
“For that reason I find that [she] was not constructively dismissed.”