Personal grievance - Sexual harassment - Employment Relations Act 2000
Wynne v The Order of St John Midland Regional Trust Board
25 Nov 2008, Y S Oldfield, AA 402/08, (8 pages)
UNJUSTIFIED DISADVANTAGE - SEXUAL HARASSMENT – Applicant and immediate manager (“husband”) married – Applicant claimed that when marriage falling apart, husband’s conduct towards her at work affected employment to disadvantage and that other conduct amounted to sexual harassment – Respondent argued that originally only raised concerns with husband – Argued that when raised concerns with respondent’s HR Manager (“W”), W decided not to take further steps as did not consider allegations such that could be described as sexual harassment or other serious misconduct – Applicant claimed husband gave applicant inappropriate workload and made inappropriate comments undermining confidence – Also claimed witnessed husband engaging in inappropriate behaviour in workplace with another female colleague, subjecting applicant to a form of sexual harassment - Applicant confronted husband about behaviour, saying could not continue to work with him – Husband replied transfer not possible – Applicant and husband began living apart – Applicant advised senior manager (“N”) that separating but did not raise issue of husband’s conduct – Applicant later gave N medical certificate stating unfit due to workplace stress – Applicant’s counsel raised disadvantage grievance raising workload and support concerns, but not sexual harassment – W and N held meeting with applicant - Applicant said receiving less help from husband than before, then raised issue of conduct applicant observed between husband and colleague – W and N concluded husband’s behaviour did not amount to serious misconduct – Concluded workload issues were minor and conduct observed between husband and colleague within bounds of what was acceptable in workplace – Authority found W’s assessment of situation justified – In order for husband’s conduct with colleague to amount to sexual harassment of applicant, must fall within s108(1)(b) Employment Relations Act 2000, being that applicant was subjected to unwelcome or offensive language, visual material or physical behaviour of sexual nature – Found colleagues talking, laughing and spending time together in front of third colleague not of sexual nature at all – One instance of intimate behaviour witnessed by applicant was not by itself enough to suggest that conduct unacceptable in workplace – Authority noted colleague applicant confided in was unaware of any inappropriate behaviour – No sexual harassment – Found no evidence that husband gave applicant less assistance than gave to staff generally – Found workload issues minor – Found applicant did not take request for transfer further when husband declined – No breach of duty arising from failure to consider request for transfer – No unjustified disadvantage – UNJUSTIFIED DISMISSAL – Applicant claimed senior management failed to address concerns in way that made it safe for applicant to return to work from period of sick leave, so applicant left with no option but to resign – Applicant stated found idea of going back to workplace amongst colleagues who witnessed events too distressing, particularly working with colleague who applicant suspected was then living with husband – Authority found issue for determination whether respondent constructively dismissed applicant by failing to ensure safe to return to workplace – Applicant told respondent no longer wanted transfer – Husband had been suspended pending investigation into unrelated matter – Although undecided, applicant knew husband unlikely to return to workplace in immediate future – Applicant told Authority that to make workplace safe for applicant, respondent should have dismissed husband and colleague who applicant believed to be living with husband – Authority found were limits to what respondent could do to assist in making applicant feel comfortable going back to work – Found applicant resigned because could not bear to work with woman applicant believed to be husband’s new partner, and remedying this outside respondent’s capabilities – Resignation did not arise as result of breach of duty by respondent – No unjustified dismissal – Ambulance Officer
Result:
Applications dismissed (disadvantage and dismissal) ; Costs reserved
