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A few weeks ago the Southland Times ran an article about a
decision of the Employment Relations Authority (ERA) (that was
actually a case run by my office). The case involved Ms K. who
claimed that she had been constructively dismissed due to a number
of actions of her former employer.
The ERA member determined that Ms K. had not been constructively
dismissed. She did find that the employer had unjustifiably
disadvantaged Ms K. when Ms K. was instructed to move her desk in
with her superior. The ERA decided that this was the only
unjustified action of the employer and awarded Ms K. $500.00
compensation.
One of the grounds that Ms K. relied on to support her claim of
constructive dismissal was that she had been sworn at by her
superior. Her evidence was that her female manager told her she was
"f%$king useless", that her work effort was
"s!@t", and that all she did was "f%$k" around
and distract the store men .She was told that when she came into
work she looked like she could not be "f%$ked ". The fact
that this occurred was unchallenged by the employer. Ms K's.
evidence was that this was said to her in the presence of another
manager and a fellow employee and left her feeling humiliated.
Interestingly another decision of the ERA, from a different ERA
member, was released six days before the decision regarding Ms K.
This decision also involved a claim of constructive dismissal.
The case involved a Mr I. who resigned from his job following an
altercation with the Managing Director. Mr I. claimed that the
altercation arose when he asked why he had not received his wages.
The employer informed him that this was because he had not filled
out his time sheet properly and what must have been tense
discussion developed.
The discussion culminated in, according to Mr I., the employer
stating that Mr .I was a "piece of bleep [excrement]" and
that he was to do exactly what he was told. According to Mr .I the
employer went on to say that if he told Mr I. to "bleep in the
corner then he was to bleep in the corner".
At the ERA the employer denied saying this and claimed that he
had instead said "if I tell you to sit in the corner then you
should sit in the corner". However, the ERA determined that
the employer had said bleep and not sit and ultimately found that
Mr I. had been constructively dismissed. The ERA awarded Mr I.
$75,000.00 in lost wages and $19,000.00 for hurt and
humiliation.
Of interest is the statement from the authority in Mr I's
case that "the authority cannot readily conceive of any
situation where an employer could be justified in speaking to an
employee, no matter what age, gender or position, in those terms.
There is no suggestion that, on this occasion, the words were used
in jocular banter between two people engaged in ribbing each
other".
Turning back to the case of Ms K. As I said above one of the
incidents that Ms K. claimed had lead her to resignation, and thus
amounted to constructive dismissal, was that her employer had sworn
at her in front of another employee . The ERA member in this case
accepted that the employer had sworn directly at Ms K, rather than
using swear words generally. However, the member found that as the
use of such coarse language was commonplace within the workplace
and she did not consider the swear words, even directed directly at
Ms K., would have unduly concerned or upset her.
The two decisions appear difficult to reconcile and this is why
I tell clients before they go to the ERA that it is very difficult
to predict whether they will be successful or not.
In one case an authority member states that he could not
conceive of any situation where an employer would be justified in
speaking to an employee in such a manner (swearing at him or her).
On the other hand another member said that, although she determined
that someone has been sworn at directly, this did not unjustifiably
disadvantage the employee - as the use of such coarse language in
the workplace was common.
This is a reason why mediation is such a valuable tool. The vast
majority of employment cases settle in mediation assisted by a
professional mediator supplied by the Department of Labour free of
charge. At mediation the parties have the power – they
decide their fate at a fraction of the legal cost of going to the
ERA.
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guide to the subject matter. Specialist advice should be sought
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A court has determined that an employee had a workplace right under the Fair Work Act 2009 to make a complaint entitling the employee to proceed with her general protections claim.
Progress towards harmonisation of the WHS laws has been slow and has met with significant
opposition in some states.
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