Let's talk about sex ...

There's nothing like a salacious tag line to hook in a reader. That said, after my recent blog entry on the perils of Facebook and email and internet usage in the workplace, many of you could be forgiven for not clicking on an entry with that subject line ...

Sex, or more particularly sexual harassment, was the subject of a case, concerning Mr Heeney's claim against his employer, Frame and Mirror Limited, recently determined by the Employment Relations Authority in Christchurch .

In something of a twist on the more common sexual harassment cases, Mr Heeney alleged that he was bullied and sexually harassed by his male employer Mr Patching.

Mr Patching was the sole director and shareholder of Frame and Mirror Limited. Mr Heeney also alleged that he was constructively dismissed.

He was successful in his claim that the employer's conduct amounted to sexual harassment, although it was held to be at the lower end of the harassment scale. However, his claim for constructive dismissal failed and he was held to have resigned.

To briefly summarise the facts, it appears that this was a classic case of a dysfunctional relationship within the workplace. By way of example, the Employment Relations Authority noted that the relationship between Mr Heeney and Mr Patching "oscillated between the cordial and the hyper-critical".

Mr Heeney alleged that two examples of Mr Patching touching him: once on the buttocks; and once when he was alleged to have brushed over his genitals while reaching into his tool pouch, amounted to sexual harassment.

The Authority ultimately upheld the sexual harassment claim, on the basis that it was unwanted touching of a sexual nature, which had a detrimental effect on Mr Heeney's employment.

However, Mr Heeney failed in his claim that he was constructively dismissed. One of the key reasons that claim failed was that Mr Heeney had complained to Mr Patching about his inappropriate touching and Mr Patching had apologised and undertaken to resolve the issues.

The Authority found that this impacted on Mr Heeney's ability to claim remedies for the sexual harassment, but more significantly that Mr Heeney was not in a situation where he had no option but to resign. His decision to leave the workplace also occurred after another issue involving his right to listen to an MP3 player in the workplace, and not immediately following the sexual harassment. Accordingly, he was held to have resigned.

The case serves as a reminder to employees that there is a necessarily high threshold for constructive dismissal. As an employee, if you have an issue with the conduct or actions of your employer, it is important to draw that issue to your employer's attention, so that the employer is given an opportunity to rectify the situation.

If the employer fails to do so, this may give rise to a claim for constructive dismissal.

Awareness of the issues and the opportunity to rectify is very important.

So maybe this isn't so much a case of "let's talk about sex", but rather a reminder of the importance of the need to simply "talk" about issues within the workplace, before things get out of hand.