Three recent decisions from the Human Rights Review
Tribunal, all of which were resolved in favour of the employee, are
a reminder to employers that their responsibilities extend beyond
the Employment Relations Act 2000 to the Human Rights Act
AFFCO was ordered to pay a former casual employee $12,118 in
lost wages and $15,000 for humiliation, loss of dignity and injury
to feelings. It was also required to provide training to its
management staff in relation to their obligations under the Human
Rights Act 1993.
The case concerned a man who had been dismissed for refusing to
work between sunset on Friday and sunset on Saturday because his
religion forbade it. The man had agreed at the job interview to
work overtime but had asked to be assigned day shifts.
He was clear that he had not been asked about his availability
over the weekend. Equally, however, he had not raised the matter
when asked whether he had any questions. He had assumed that, as at
his last job, overtime would be voluntary and worked out between
employer and employee.
An unsuccessful job applicant who alleged that he had been
discriminated against on the grounds of age was awarded the right
to see the CVs, employment histories, qualifications and experience
of the other applicants (including the successful applicants) who
applied for the same two positions.
An application by the company for a confidentiality order was
dismissed, but the complainant was required to give a written
undertaking to the Tribunal that he would respect the
confidentiality of the documents provided to him. This was a
preliminary hearing. The full proceedings are yet to be heard.
A former prostitute has been awarded $25,000 in damages for
emotional harm as a result of sexual harassment by her
Chapman Tripp comments
The monetary awards issued in these cases are high by the Human
Rights Review Tribunal's previous standards and may make it a
more attractive source of remedy for employees.
An employee is able to make a complaint to the Human Rights
Commission against an employer if the employee considers that he or
she has been discriminated against or harassed in breach of the
Human Rights Act. These claims will often have an overlap with the
Employment Relations Authority as an unjustified dismissal or
disadvantage claim relating to discrimination or harassment could
be brought in either jurisdiction (but not in both).
The reason an employee may choose the Tribunal is that he or she
is not restricted by the 90 day time limit which applies to
personal grievance claims in the Authority.
The good faith provisions in the Employment Relations Amendment
Bill currently before Parliament will limit the degree to which
employers will have to disclose information to an employee
regarding other employees. But, while this change will bear, for
example, on an application by an employee passed over for promotion
to see the CV of the successful applicant, it will not bear on an
application by an unsuccessful job seeker to the Tribunal.
Non-employees cannot apply to the Authority, which can only hear
cases involving employment relationships.
Our thanks to Vonda Hodgson for writing this Brief
The FWC upheld summary dismissal of a worker who tested positive for cannabis, despite being denied procedural fairness.
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