'Offensive' comments 'were seen as a 'dig' at gender diversity,' says team leader
The Employment Relations Authority (ERA) recently dealt with a case involving a long-serving worker who claimed unjustified disadvantage and constructive dismissal after receiving workplace behaviour expectations from her manager.
The worker argued that being reminded of professional communication standards constituted disciplinary action that breached her employment rights.
The dispute arose after the worker made a comment on her employer's internal forum about workplace facilities, which some colleagues found offensive.
Her manager subsequently issued a letter outlining expectations for future workplace communications, prompting the worker to file grievances claiming the action was unjustified and ultimately forcing her resignation.
The worker maintained that the letter silenced her voice in workplace discussions and created a hostile work environment. She argued that her employer failed to follow proper processes and breached contractual obligations, leading to her decision to resign after 14 years of service.
Internal forum comment sparks management response
The worker had been employed in a government organisation's compliance team for approximately 14 years when she made a post about period products being provided in both male and female bathrooms.
Her comment stated: "This is awesome but a shame it took so long coming. And interesting, now that men can menstruate, free period products are available in [the organisation's] bathrooms."
The worker's team leader became aware of this comment when it was reported by one of the chairs of the employer's rainbow network, who explained that some employees were upset or offended by the remark.
The team leader noted this was not the first conversation she had had with the worker about workplace communication impacts, though the worker disputed this claim.
After taking advice from HR, the team leader decided to meet with the worker to discuss the matter and set expectations for the future. This meeting occurred on 19 December 2023, with no support person offered as the team leader considered this unnecessary for an informal conversation.
Behaviour expectations letter outlines workplace standards
Following the meeting, the team leader issued a letter dated 20 December 2023, headed "Expectation of behaviour". The letter stated:
"I am…merely reminding you of your employee obligations under the [organisation's] Code of Conduct… [Y]our comments…were seen as a 'dig' at gender diversity at [the organisation]."
The letter continued: "While everyone is entitled to their own opinions, it's essential to exercise discretion when expressing your views to colleagues, particularly in situations where those views could potentially cause offence or division among peers."
It outlined requirements including exercising discretion with colleagues and being mindful of opinions' impact.
The team leader concluded by stating: "If you do not follow these expectations, I will discuss this with you." The worker took approved sick leave over Christmas and in February 2024 began reporting to a different team leader as part of a staff reorganisation.
Employee claims workplace treatment damaged career prospects
On 2 April 2024, the worker filed a statement of problem with the ERA, claiming unjustified disadvantage and that the employer had not acted in good faith. She resigned on 8 April 2024, giving four weeks' notice, with her last working day being 3 May 2024.
The worker argued that the December letter was disciplinary in nature and she was not offered the opportunity to bring a support person. She claimed it impacted her promotion prospects and "silenced" her.
The worker also raised concerns about a "bathroom policy" imposed without consultation, though this was not mentioned in the original letter.
The worker said she felt upset and anxious following the meeting and claimed she was "ostracised" because her former team leader did not acknowledge her after the reporting line change.
When her senior manager spoke to her before leaving, the worker explained she was departing because she disagreed with organisational changes and disliked having a non-technical lead.
ERA determines management actions were justified
The Authority examined whether the worker's employment conditions were affected to her disadvantage by unjustifiable employer action. It determined that the December letter was not a disciplinary outcome but rather a communication of reasonable workplace expectations.
The decision stated: "I have no hesitation in finding that the 20 December letter was not a disciplinary outcome, nor did it impose disciplinary consequences on [the worker]. The letter itself states that these are 'expectations' and is headed 'expectation of behaviour'."
The Authority emphasised that employers have legitimate rights to set workplace standards: "[The organisation] is entitled to require certain minimum standards of behaviour from its employees… The requirements I have set out above are reasonable and proportionate requirements in a professional workplace."
Dismissal allegations fail to meet legal threshold
The worker's constructive dismissal claim was based on alleged breaches including disparaging emails between management, unfair process, being "silenced" regarding workplace practices, and experiencing ostracism. The Authority examined each claim and found them unsubstantiated.
Regarding the "silencing" claim, the Authority noted: "Asking a long-serving employee with some 14 years' experience in the workplace to 'be mindful' of her colleagues when having conversations in the workplace is not 'effectively silencing' [the worker]. It asks her to consider the perspectives of others in the workplace."
The Authority found the worker had expressed broader dissatisfaction with organisational changes dating back to 2017, rather than specific grievances related to the December letter. The decision explained:
"[The worker's] evidence is that she did not want to continue in the workplace… because she fundamentally disagreed with workplace changes over a period of many years… This does not amount to a constructive dismissal." The Authority dismissed both claims, making no orders in favour of the worker.
