A beauty therapist who alleged she was sexually harassed while giving a massage involving a "manzillian" has been unable to prove the claim, but still won a payout.
The woman, described as vulnerable in the decision, laid a complaint with the Employment Relations Authority (ERA) claiming that she was bullied and sexually harassed while working at Bella Vita Day Spa Limited for over a year from 2015.
She further claimed she was owed holiday pay, wages, unpaid commission and unpaid KiwiSaver contributions.
The ERA found in her favour in this regard and imposed an additional penalty on the Palmerston North business, awarding the woman a total of $7800.
In its decision, released today, the ERA heard that the woman had just completed her diploma in beauty therapy when she took her first job in the industry at Bella Vita.
On several occasions, she said she was asked to massage a male client who was well-known to the spa.
"She referred to being asked to perform a waxing treatment known as a manzillian on that person," the ERA decision said.
"The treatment [the woman] was asked to perform on the client is one that is included in the list of treatments offered by Bella Vita on its website."
The woman said she felt uncomfortable at having to perform the waxing treatment, which involved handling the client's genitalia, but agreed in order to keep her boss happy.
"Afterwards she said he exposed himself to her when pointing out redness that had resulted from the waxing treatment she had performed," the decision said.
"[The woman] also referred to that person 'propositioning' her in the course of a massage by inviting her to work directly for him in a separate venture ... She said she found the invitation inappropriate and was uncomfortable about it."
In her evidence, the business manager said she had asked the woman to carry out the manzillian on the client as part of her training.
The woman said she did not raise her concerns with her boss because she felt the boss would be unsympathetic - and that if she was unwilling to massage the man she would lose her job.
"In remaining silent about her concerns, however, [the woman] gave her manager no opportunity to address them by making inquiry and taking steps to avoid a repetition of the behaviour that made her uncomfortable," the ERA decision said.
"For this reason I am not persuaded that [the woman] was sexually harassed in her employment by being asked to perform a waxing treatment or massages on the client when asked by her employer to do so."
On the matter of the money the woman claimed she was owed, the ERA found that the documents and evidence presented by Bell Vita were unreliable and preferred the complainant's evidence.
"I find it is more likely than not that many of the time records presented by the respondent [Bella Vita] were formulated after the event to reflect the wages paid to [the woman], rather than being genuine documents formulated contemporaneously and reflecting the hours [the woman] actually worked," the ERA said.
The woman claimed she was sometimes paid in vouchers, which is illegal under the Wages Protection Act. While the spa said the woman had actually requested such remuneration, the ERA again preferred the complainant's evidence that this was untrue.
Nor was the ERA persuaded of "either the authenticity or evidential value" of a photocopied document submitted by Bella Vita relating to the woman's holiday pay.
"It was clear to me Bella Vita had not fulfilled its duty to [the woman] in the fundamental matter of her remuneration and I find the failure to do so was deliberate and sustained over several months."
The woman further claimed that she was bullied at work, stating she did not having certainty over her hours, wages or holiday pay.
"It was clear her dissatisfaction over these matters adversely affected the employment relationship," the ERA said.
"When I questioned her about being bullied by [the woman] she referred
to being upset over personal comments made by the boss to her including, for example,
suggestions that she needed to go for a run, with the implication being that she needed
to lose weight.
"[The boss] denied making comments that could be construed as offensive
and said she treated [the woman] like a sister when she needed cheering up."
Overall, however, the ERA was not persuaded the evidence revealed bullying by the business.
The ERA ordered the company to pay the woman $5300 for underpaid hours, underpaid commission, underpaid wages and holiday pay.
Bella Vita was ordered to pay a further penalty of $5000, half of which was to go the woman and the other to the Crown.
Bella Vita was responsible to calculate and pay KiwiSaver contributions to the woman.
"I regard [the woman] as a vulnerable employee because of her relative naivety and inexperience in employment matters. I am unaware of any previous finding by the authority or court of conduct of a similar nature on the part of the employer," the decision said.