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Home / Bay of Plenty Times / Business

Woman wins dismissal case

By by Ellen Irvine
Bay of Plenty Times·
10 Feb, 2012 07:42 PM5 mins to read

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The Employment Relations Authority has ordered VTNZ to pay a former employee $10,500 distress compensation and more than eight months' lost earnings for wrongly dismissing her from a Mount Maunganui VTNZ station.

The ERA found in favour of Katherine Spake that she had been unjustifiably dismissed in April last year from her job as a customer services representative at the Hewletts Rd station.

The finding tells of a culture in which smutty comments "full of innuendo" were made, a male boss touched Ms Spake's hair and back, and made references to "udders" and gestures towards her breasts.

Ms Spake had worked in a part-time role at VTNZ since March 2006.

VTNZ claimed that Ms Spake had effectively abandoned her employment by being absent from work for three working days or more without her employer's consent or notifying the employer of a sufficient reasons for her absence, as per her employment contract.

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But the ERA found the evidence did not support VTNZ's claim.

Instead, Ms Spake had notified VTNZ she had a good reason for her absence, she had not been absent for three or more working days, and VTNZ's own medical practitioner had certified that she was unfit to work at the time.

"VTNZ failed to comply with the requirements of its own abandonment policy by failing to take the necessary steps it was required to take in order to ascertain from Ms Spake whether or not she had intended to abandon her employment," the ERA found.

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The authority found VTNZ effectively dismissed her when it sent her a letter saying she had abandoned her employment.

Ms Spake said her unjustified dismissal had impacted her health so badly that she was too unwell to seek or undertake work.

She attributed all her lost earnings to health problems which she said had been caused by VTNZ.

Two clinical psychologists found she had not been well enough to seek work since her employment had ended, and she would require ongoing professional support to get well.

Ms Spake had required medical attention, ongoing medication and counselling since her dismissal.

She told the ERA her unjustified dismissal had "devastated her" and described feelings of embarrassment, betrayal, humiliation, frustration, anger and distress.

She avoided leaving the house and some days was unable to get out of bed.

Ms Spake told the ERA she found station manager Keith Johnston to be "creepy" and she was "quite frankly frightened of him".

She said she had become increasingly unhappy while working with him to the extent that she began sick leave in March last year, which ultimately resulted in the unjustified dismissal.

She described an incident in which he took her ponytail and twisted it round in his hand, and a few minutes later touched her back, "lightly pinching his fingers across the top of her back in a line from one shoulder across to the other shoulder".

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Mr Johnston described his actions as having been done "in fun only", but the ERA found that he had touched Ms Spake twice and her account was correct.

Ms Spake alleged that Ms Johnston tried to downplay the incident several months later by saying "It's not like I grabbed your ...", gesturing "his hands towards her as if he was about to take hold of her breasts".

A week later, on March 15 last year, Mr Johnston made a reference about udders which the ERA found was "more likely than not" a reference to breasts and was directed at Ms Spake.

The ERA accepted Ms Spake's evidence that she was very distressed by the comment, and did not want to be at work the next day because she was so emotional about the incident, to the extent she was shaking.

Ms Spake visited her own doctor and obtained a medical certificate for sick leave, and was also later examined by a VTNZ doctor who found she was suffering "an acute stress reaction due to a work-related incident".

But after a meeting with VTNZ the company believed it had resolved the complaint and there was no barrier to her starting work.

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The ERA found she was unfairly pressured to return to work, was still on certified sick leave during the meeting, and the complaints had not all been resolved.

"No outcome had been reached regarding the most serious allegations ... the breasts gesture and the udders comment".

The ERA found that VTNZ should have acknowledged the udders comment was inappropriate, instructed Mr Johnston to "immediately desist from making smutty jokes or engaging in innuendo or sexual banter with his subordinates" and asked him to apologise to Ms Spake.

The ERA ordered VTNZ to pay Ms Spake 12 months lost remuneration, but this was reduced by 30 per cent to reflect her contribution to the situation which gave rise to her unjustified dismissal.

This included failing to clearly communicate she did not believe she was well enough to return to work, and failing to follow the proper reporting procedures for her sickness absence.

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