Employee made to work at company's lingerie department despite illness
A retail worker diagnosed with breast cancer has been awarded $8,000 in compensation after the Employment Relations Authority (ERA) found her employer failed to adequately address her discomfort at being rostered in the lingerie department.
The authority ruled in the case that while the dismissal was justified, the company had disadvantaged the worker, identified only as OJX, by not doing enough to explore her concerns or keep her informed about why moving her out of the lingerie section was proving difficult.
From cancer diagnosis to dismissal
OJX began working as a sales assistant for the retail company, identified only as AVJ, in early 2021. She was diagnosed with breast cancer in August 2023 and soon after asked to be moved away from the lingerie department, where she was rostered one day a week and expected to perform bra fittings.
The nature of that work, including fitting bras and working among lingerie displays, became deeply distressing for her following her diagnosis, according to the ERA's ruling.
The regional manager's notes recorded OJX describing the lingerie area as "a trigger" for her, while the front counter remained "her happy place."
Her employer acknowledged her concerns and, following a meeting in January 2024, assured her union representative that it would move her "as soon as the opportunity arises."
That opportunity, however, never formally materialised.
OJX spent February and March 2024 waiting for a resolution that did not come, with the employer making limited documented attempts to pursue alternatives or communicate the challenges it was facing in rearranging rosters.
In April 2024, OJX went on unpaid sick leave with a three-month medical certificate that provided no detail beyond confirming she was unfit for work.
AVJ made repeated written requests for more specific medical information about the reasons for her absence and proposed several meetings, but OJX either declined or did not attend.
By July 2024, with no medical certificate covering her return and no clear indication of when she might resume work, AVJ dismissed her on grounds of medical incapacity.
Was the dismissal justified?
ERA Member Nicola Craig found the dismissal was not unjustified, noting that OJX had provided minimal information to her employer throughout her period of leave and had effectively stopped engaging.
"Good faith requires both parties to be active and communicative with the other in maintaining a productive employment relationship," Craig wrote, citing section 4 of the Employment Relations Act 2000.
Craig acknowledged OJX's difficult circumstances but noted that she had continued working for some months after her diagnosis, had declined surgery offered in late 2023, and appeared to still be deciding on a treatment course at the time of her dismissal.
The hospital specialist's letter provided in early July 2024 noted only that OJX "would benefit from being afforded the time and space needed to reconcile with her situation," falling short of addressing the employer's reasonable questions about her capacity and prognosis.
On the disadvantage grievance, however, Craig found in the employee's favour.
The authority concluded AVJ had not sufficiently explored OJX's concerns about the lingerie department or adequately explained to her the difficulties it was encountering in finding a solution.
"OJX was disadvantaged by AVJ's unjustified action in failing to sufficiently fully explore OJX's concerns," Craig wrote, pointing specifically to the period from February 2024 onward when OJX was left without a clear update on her situation.
In assessing compensation, Craig found no grounds to reduce the award on account of OJX's own conduct, noting that her failure to provide information related to a separate matter from the employer's failure on the lingerie issue. She ordered AVJ to pay OJX $8,000.
Non-publication orders were made permanently covering the identities of both parties and the company's witnesses, given the sensitivity of OJX's health information.
