A labourer accused of disparaging comments about female co-worker has won a $10,000 payout after a dispute with his employer.
The matter – adjudicated by the Employment Relations Authority (ERA) – dates back to 2017, when the labourer was employed by construction firm Rayner at its Invercargill branch.
He initially started the role in January and faced his first official complaint in a matter of months. On July 14, 2017, a female staff member complained to Rayner that the labourer had commented to two other colleagues that she "had her tits out" on her Tinder profile.
The female staff member had confronted the labourer with the allegation a day earlier, but he vehemently denied making the remark.
The matter was handed over to a senior staffer, who conducted an investigation and determined that only one of the two co-workers had heard the comment being made. The labourer, however, continued to deny that he made the comment.
The senior staff member reached the conclusion that he was unable to confirm that the labourer had, in fact, made the comments he had been accused of.
Given the nature of the comments allegedly made, the labourer was sent a letter outlining the expectation he should not be making comments of a sexual nature to other employees at Rayner.
The matter didn't end there. The relationship between the labourer and the female staff member continued to decline, eventually culminating in mediation between the parties on September 5, 2017.
Due to the ongoing deterioration in the relationship between the parties, the labourer informed Rayner he was being unjustifiably disadvantaged by the matter.
On October 4, Rayner management was notified of a further event involving the parties. The nature of this event was not disclosed in the ERA decision.
Amid these inquiries, Rayner announced an intention to restructure its Invercargill business and both the labourer and female staffer were told that their positions were potentially surplus to requirements.
Following a consultation process, the labourer was advised that his position would be disestablished.
In response, the labourer took his employer to the ERA, raising complaints of personal unjustified disadvantage and unfair dismissal.
In respect of the unfair dismissal complaint, the ERA found that the consultation process was fair and that the business was justified in making staff members redundant.
"It is true that the employer had been sustaining heavy losses for the previous two years trading and that the position was deteriorating," the ERA decision read.
"It is also true that Rayner's owners had put in significant capital to try to steady the ship. Equally importantly, Invercargill orders were down 70 per cent year on year."
Due to these financial struggles the business was within its rights to reduce costs at the business.
Rayner was not, however, successful in its defence against the labourer's complaint of unjustified disadvantage.
The ERA found that while Rayner had investigated the complaint from the female staffer, it did not properly investigate a complaint filed by the labourer on the same day.
The records showed that the labourer had also lodged a complaint accusing his co-workers in respect of their conduct toward him.
The ERA said that the labourer's grievance was further exacerbated because in addition to not having his complaints investigated, he was also given a letter setting out the rules for his future behaviour, despite the allegations not being substantiated.
"Given the finding that it could not be demonstrated on the balance of probabilities that he had done what he was alleged to have done, to then proceed to set out rules of engagement for him seems a bridge too far," the ERA said.
The ERA took particular exception to the final two lines of the letter sent to the labourer.
"[The letter] proceeds to say that "if there was to be a future example of behaviour that was deemed to be sexual harassment, this would almost certainly result in your dismissal," the ERA said.
"It is hard not to see that last sentence as no more or no less than a threat and this in circumstances where, as I keep emphasising, [the labourer] has been found to have done nothing wrong."
For this reason, the ERA awarded the labourer compensation in the sum of $10,000. The employer was also required to cover the ERA filing fee of $71.56.