A worker who was fired for supposedly wolf-whistling at a woman while waiting at traffic lights in a work vehicle was awarded compensation after the
Employment Relations Authority found that his company did not follow the correct procedures in dismissing him.
Barry Simpson was employed by DDS from September, 2012, to install broadband fibre optic cables around Auckland.
In March, 2013, he attended a staff meeting where there was a discussion about the behaviour of employees while working at various sites and workers were told not to wolf-whistle or behave in a way that might offend members of the public.
Simpson signed a document saying he understood the importance of on-site conduct and that misconduct could result in employment termination.
On 2 April, 2013, Simpson was in a work truck driven by a colleague when they stopped at a red light on their way to a work site, with another work truck behind them.
A third DDS truck driven by a colleague crossed the intersection in front of them and Simpson told the ERA that the truck behind him sounded an air horn and he waved at the truck driving past and the truck behind him.
At the time, he said he noticed a woman in a car waiting at the same lights, because he liked the model of her vehicle.
Later that afternoon, DDS director Paul Ottaway received a phonecall from the woman’s irate husband who said his wife had been subjected to “lurid comments” and wolf-whistling from a DDS employee in a truck.
The next day, Simpson was told about the allegations, which he denied, and was suspended.
Two days later, he was fired and told that it was because of “road rage” and inappropriate behaviour towards a female complainant.
ERA member Eleanor Robinson found that Simpson’s dismissal was unjustified and that although DDS did not have access to HR resources, its procedures “fell far short of the expectation of procedural fairness”.
DDS was ordered to pay Simpson $5,000 compensation for hurt and humiliation and $1,650 for lost wages.
Dundas Street Employment Lawyers principal Blair Scotland said small employers were held to the same standard as large employers when it came to dismissing employees.
He said employers were required by law to consult with someone before suspending them and the ERA identified DDS’s failure to provide all relevant information in advance so the employee could comment on it.
“The employer missed jumping through the basic hoops of what is required and was penalised accordingly.
“Unless you have a lawyer who specialises in this stuff or you’re a member of a business association, small business owners don’t have HR resources, they don’t know the correct processes to follow, so they jump in blindly and do the best that they can. It’s a pity that more isn’t done to upskill and educate small employers in particular about their legal obligations and the fact that they’re held to such high standards.”
He said employers needed to gather evidence properly in dismissal cases, give employees the chance to respond and follow fair procedures before making a decision.
“The best advice is to document every step of the way.”
