Is it workplace ‘banter’ or simply harassment?

A recent decision from the Employment Relations Authority (Authority), AKD v Clarence Street Warehouse Limited [2022] NZERA 255, has addressed the risks employers may face when ‘boys club’ work environments cross the threshold from workplace banter into sexual harassment.

Background

AKD claimed that shortly after the assistant manager, TDP, started working for Clarence Street Warehouse Limited (CSW), he began frequently commenting on her appearance, talking about his sex life and asking AKD about her personal life. AKD stated she tried to ignore TDP but on occasion was drawn into conversations of a sexual nature with him directly or as part of the ‘banter’ the group of male employees at CSW would engage in.

In August 2020, TDP made an offensive remark to AKD shortly followed by an inappropriate gesture in front of her. Following these incidents, AKD finally reached her breaking point, sick of feeling uncomfortable and offended in the workplace, she proceeded to complain to CSW. The complaint resulted in a workplace investigation and a final decision was reached which found that whilst AKD was genuinely distressed about what had occurred she had also initiated conversations of a sexual nature herself. Disciplinary action against TDP was recommended, employees were advised of expected behaviour and management were training in identifying and dealing with bullying and harassment. AKD was unhappy with the outcome and after multiple discussions with CSW felt she had no choice but to resign.

AKD then raised personal grievances against CSW for sexual harassment, unjustified action causing disadvantage and unjustified dismissal.

Personal Grievances

When an allegation involving sexual harassment is raised in the workplace, the employer must make suitable enquiries into the complaint. If the employer is satisfied the complaint has substance, they must take steps to prevent any repetition of such behaviour (which, depending on the nature of the behaviour, may involve dismissing the offending employee). If similar behaviour continues to be directed towards the complaining employee, that employee may have grounds to raise a personal grievance based on sexual harassment.

CSW’s HR Manager conducted an investigation into AKD’s complaint and found that TDP had used sexual language that was significantly offensive. However, when issuing the decision CSW had noted that AKD herself had engaged in personal conversations with her colleagues of a physical and personal nature.

The Authority found that whilst CSW discussed personal physical and relationship matters with colleagues, this did not mean she was a willing participant in all conversations of a sexual nature. It was evident that TDP initiated and participated in conversations of a sexual nature with AKD and these were often offensive or unwelcome.

However, the Authority found that a sexual harassment personal grievance had not been made out as CSW had investigated AKD’s complaint, taken steps to train management in identifying and dealing with sexual harassment and no further incident of sexual harassment had taken place following her complaint. The Authority noted that even though a personal grievance for sexual harassment was not found, it does not change the fact that AKD was sexually harassed by TDP.

By contrast, the Authority had no issue determining AKD had grounds for an unjustified dismissal personal grievance. Grounds for constructive dismissal were found by the Authority as it was foreseeable AKD would resign due to CSW’s breaches as an employer, as detailed below.

Obligation to provide a safe work environment

All employers have a legal obligation to provide a safe work environment and must take all reasonable and practical steps to meet health and safety requirements. This means that employers need to protect employees from foreseeable harm and take steps proportionate to the known risk.

The Authority found that the sexual harassment risk at CSW was foreseeable as CSW knew there was a risk of this occurring, based on the conversations and behaviour of a sexual nature that took place in the workplace.

Whilst CSW took generic steps to prevent sexual harassment by introducing a policy on harassment and training some managers in identifying and dealing with bullying and harassment, it took no steps regarding the actual behaviour occurring.

Outcome

Ultimately, CSW did not take reasonably practicable steps to prevent AKD from being sexually harassed in the workplace. Therefore, CSW was found to have breached the obligation it owed to AKD to provide her with a safe work environment.

CSW incorrectly determined that the fact AKD had engaged in conversations and behaviour of a sexual nature impacted whether she had been sexually harassed. The Authority stressed that AKD was found to have been sexually harassed regardless of her own conduct and CSW was required as an employer to address her concerns and provide a safe way for her to return to work.

This case serves as a reminder for employers that their health and safety obligations are more onerous than they may imagine  and they should be wary of brushing off inappropriate and harassing workplace behaviour as simple ‘jokes’ and  ‘banter’.

If you have a workplace issue you would like advice on, contact Jaesen or Caylee.