Employee awarded $50,000 after being unjustifiably dismissed
A part-time food and beverage attendant who was fired after accusing his employer of sexual harassment has won nearly $50,000 after the Employment Relations Authority (ERA) ruled she was unjustifiably dismissed.
The attendant, named JXC in the court ruling, immigrated to New Zealand in October 2019 on a student visa and was hired on November 29, 2019, as an attendant at a restaurant the court named VGM.
The company was directed by XOZ, who was also the head chef, and his wife M, who took charge of managing restaurant operations.
According to the attendant, she was touched by XOZ on her breast and bottom during late January or early February 2020. She also accused the head chef of touching her hands until her dismissal.
On May 27, 2020, while the attendant and XOZ were along at work, XOZ touched her bottom and her vagina outside her clothing and offered $150 in exchange for sex, an offer she declined.
Two days later, XOZ also allegedly told the attendant that he wanted to see her for sex when he returned from a work trip.
Other allegations include XOZ suggesting in January 2020 that if the attendant had sex with him, he would give her husband a job and with his visa - another offer that JXC turned down. In reaction, XOZ threatened her, saying he knew powerful people in their country and New Zealand.
JXC also accused XOZ of masturbating in front of her during the May 2020 COVID level three lockdown when they were alone at the restaurant.
According to the attendant, there was also a "sexual assault involving digital penetration" with XOZ threatening to kill her if she told anybody about the contact.
JXC raised the matter to XOZ's wife, M, on May 30, 2020, but did not include the incident during the lockdown to "spare M's feelings."
The following day, she received a text from M which said: "Don't come to work today. I will give you salary until 12 July and I'll find you a job in between. I will call you later."
On June 2, while JXC was on a call with M, she allegedly heard XOZ calling her a "slut" and threatened her.
The ERA concluded "on the balance of probabilities" that the events of XOZ touching the attendant's hand, bottom, and breast, as well as his touching of her vagina over clothing, and the $150 offer likely took place.
However, the ERA said it was not satisfied that there was a request for sex in January 2020 from XOZ, and that he made threats to kill.
The ERA also said the lockdown accusation was "very serious" with "limited" evidence.
"Looking at the nature and quality of the evidence with such a serious allegation, I do not find it proven to the balance of probabilities standard," the ERA said in its ruling.
But with the touching that occurred in the workplace, as well as the $150 request for sex to the attendant, the ERA ruled that she was harassed.
"I am satisfied from the evidence that the conduct that has been found to have occurred was unwelcome and offensive to JXC," the ERA said. "JXC has made out her personal grievance of that she has been sexually harassed in her employment and is entitled to consideration for remedies."
The ERA also ruled JXC was unjustifiably dismissed by her employer, stating that their move to terminate her did not have procedural fairness.
"I do not find that there was a substantive reason for the dismissal," the ERA said.
"JXC had simply disclosed what she considered to be sexual harassment in the workplace. If there was a lack of clarity about that then M should have investigated that further with JXC. Instead JXC was dismissed."
The ERA ordered the organisation to pay JXC a total of $25,000 as compensation for sexual harassment. It is also ordered to pay her $8,505 in lost wages and $15,000 as compensation for unjustified dismissal.
