Cites employer's 'dismissive' attitude about workplace safety
The Employment Relations Authority (ERA) recently dealt with a case involving a worker who claimed they were unjustifiably constructively dismissed and sought compensation for lost wages and humiliation, loss of dignity, and injury to feelings. The worker also sought damages in relation to the legal expenses they incurred.
In this case, the worker had become aware of allegations of sexual harassment relating to three different employees during their employment.
The worker complained to the employer about its handling of the sexual harassment allegations, which ultimately led to their resignation. The worker contended that they were constructively dismissed due to four alleged breaches of duty by the employer.
Background and context
The worker was employed by the employer as a technical support specialist based in Wellington, having commenced employment in May 2020. In July 2020, the worker was told by a colleague that they had been sexually harassed by another employee and that the colleague was hesitant to raise their concerns with the employer.
In October 2020, the worker was informed by another colleague that they were also being sexually harassed by the same employee.
On 19 October 2020, the worker attended the employer's office and requested a meeting, during which they informed senior management that two individuals had been sexually harassed.
The worker expressed concerns about the employer's handling of the sexual harassment allegations and the process followed.
The worker's allegations
The worker relied on four alleged breaches of duty in establishing that they were constructively dismissed:
- A consistently dismissive and minimising attitude by the employer when the worker raised workplace health and safety concerns;
- The poor investigation process conducted by the employer in relation to the worker's allegations;
- An unreasonable course of conduct in the employer requiring the worker to work from the office; and
- The team leader's dismissive attitude and failure to provide the assurance sought by the worker on 15 December 2020.
The worker submitted that the team leader's actions on 15 December 2020 were the "final straw" that destroyed the worker's trust and led to their forced resignation. The worker said that “they were not provided with an assurance that the request for confidentiality would be honoured, arguing that [the team leader] was dismissive” about her concerns.
The employer denied the claims made by the worker and said that the worker was not constructively dismissed from their employment.
The employer submitted that it acted in good faith and as a fair and reasonable employer in response to the complaints raised by the worker and that it otherwise did not breach any duty owed to the worker that had the effect of repudiating the worker's employment agreement.
The ERA's findings
The ERA found that the employer did not breach any duty to the worker by failing to provide the assurance sought during the first phone call on 15 December 2020, nor did it otherwise breach any duty through the actions of the team leader on that call. The ERA stated:
"I find that [the employer] did not breach any duty to [the worker] by failing to provide the assurance sought during the first phone call on 15 December 2020, nor did it otherwise breach any duty through the actions of [the team leader] on that call."
The ERA also found that the series of events, including considering the alleged "final straw" in the context of those events and other actions of the employer, did not have the cumulative effect of breaching the relationship of trust and confidence.
Regarding the causation and foreseeability of the worker's resignation, the ERA noted:
"Considering the circumstances and actions on an objective basis, I that a substantial risk of resignation would not have been foreseeable."
The ERA concluded that the worker was not constructively dismissed from their employment and was not unjustifiably dismissed.
As a result, the worker was not entitled to the remedies sought, including damages relating to their legal fees. The ERA emphasised:
"I conclude that [the worker] was not constructively dismissed from their employment with [the employer] and was not unjustifiably dismissed."
This case highlights the importance of employers handling sensitive issues, such as sexual harassment allegations, in a fair and reasonable manner.
It also demonstrates that for a constructive dismissal claim to succeed, the alleged breaches of duty must be sufficiently serious and causative of the worker's resignation, and the risk of resignation must be reasonably foreseeable to the employer.
