A boss who slapped his employee's bottom has praised the Employment Relations Authority for not automatically favouring the woman complainant by finding it was not sexual harassment, but a "fun slap".
In a judgment released this week, authority member Anna Fitzgibbon found The Plant Place owner Bruce Sanson did not sexually harass former employee Ella Newman.
This afternoon Newman responded that she was "disappointed ... but feeling strong" and would appeal.
The 23-year-old resigned the day after the December 2013 incident, and then alleged Sanson had previously sexually harassed her during the two years she worked at his Hamilton garden centre.
Fitzgibbon rejected those claims, calling Newman an unreliable witness and questioning why she did not complain earlier.
The December 2013 bottom slap was "inappropriate and should not be repeated" but took place during a joke, Fitzgibbon said.
"Ms Newman was being cheeky about Mr Sanson's floppy hat and he slapped her on the bottom. It was a one-off slap, which I accept was a 'fun slap'."
Mr Sanson told the Herald on Sunday the finding was "groundbreaking".
"I assumed there would be too many precedents before it that would disallow it [being thrown out]. I don't think many [sexual harassment] cases get thrown out .. that was my only worry, that the girl would get more believed than the guy."
The slap was his first and last to a woman.
"It was something that just happened and you wished afterwards it probably shouldn't have happened ... I always thought she was a good friend and the relationship would've handled that."
The slap was "never a real case of sexual harassment".
"Wise counsel should have been brought to bear and good advice given in the earlier part of the year by people that should've known better than to let it go on."
Other incidents alleged by Newman were not true. They "bumped each other" in the small work space, but it wasn't sexual, Sanson said.
"She wasn't my type."
The single dad of adult children had offered Newman her job back.
"I still respect the girl. She's still a very good employee, I think it was just a youthful mistake. I thought she would've managed the garden centre within a year or two ... just because she's made a silly mistake doesn't mean that she's a bad person."
Newman stood by all her complaints and said the Roger Sutton case had convinced her "that I need to fight on".
Sutton, the Christchurch Earthquake Recovery Authority chief executive, was found to have committed serious misconduct after a female staff member complained of unwanted hugs and comments.
Newman said she felt "let down" by the authority. She had not complained about earlier incidents - which she alleged included bottom slapping - because she thought it might have been accidental.
She had glared at Sanson to make her feelings clear and a text sent after her resignation showed he knew what she was talking about, she said.
The "fun slap" was "unprovoked and forceful".
"I had to go to the doctor. I cannot reconcile what a 'fun slap' is, let alone in what ''context" an employer now seems to be able to do it ... I am 23, he is 61. It is simply not appropriate in any context ... I still can't understand how an employer can turn up to court, admit he assaulted me by slapping my bottom, and walk away thinking he has done nothing wrong."
Equal Opportunities Commissioner Jackie Blue said the Sutton affair put such behaviour in the spotlight.
"One of the things I would like to see come out of all of this is that woman should come forward," she said.
But she cautioned that incidents of a sexual nature had to meet a high threshold to be deemed as sexual harassment.
Sexual harassment was usually a repeated incident, and if it was a one-off incident it had to be quite significant and cause harm and detriment.
- additional reporting NZME.