According to the provisions of Section 103A of the Employment Relations Act 2000, an employee is at the authority to bring personal grievance against the employer under which they are working if there are sufficient grounds to believe that they have been dismissed unjustifiably[1]. In this regard, employees are required to establish the fact that they were dismissed on unreasonable grounds. The burden of proof lies upon the employer to prove that the dismissal was reasonable and justified. It is worthwhile to refer here that, in case related to sexual harassment, racial harassment, bullying, and discrimination allegations; an internal independent investigation is necessary for the purpose of complying with the requirements depicted in Section 103A of the Employment Relations Act 2000. A power is entrusted upon the Employment Relations Authority to investigate the problem if it deems fit and proper. After proper investigation, the Employment Relations Authority shall issue a determination in order to evaluate the fact that whether the dismissal was justified or not[2]. If the dismissal is found to be unjustified then, the Employment Relations Authority shall determine the remedies which the employee is entitled to. In the process of determination regarding allegations involving sexual harassment, racial discrimination and bullying both the Employment Relations Authority and Court is authorized to conduct an external independent investigation by applying the test of justification under the provisions of Section 103A of the Employment Relations Act 2000.
It is worthwhile to refer here that, an employee can be dismissed for various reasons. However, the most common reasons are associated with poor performance, misconduct in workplace and redundancy. In this context, an authority lies upon the employees to bring an action for claim for the purpose of challenging their dismissal by stating it to be unjustified and unreasonable. In these cases, the Courts of New Zealand usually applies the test of justification in order to examine the actions of the employer. According to the provisions of Section 103(1) (a) of the Employment Relations Act 2000, an employee has the right to bring a claim for personal grievance against the employer under which they are working if they have dismissed unjustifiably[3]. However, in such cases, it is important on the part of the employees to establish the fact that they were dismissed unjustifiably and on unreasonable grounds. In such cases, the burden of proof lies upon the employer in order to prove that the dismissal is justified. For the purpose of proving that the dismissal was justified; the employer must rely on the following grounds-
It is worthwhile to mention here that, according to the provisions of Section 4 of the Employment Relations Act 2000, the employer-employment relationship must be based on trust and understanding and this Section applies to the other aspects of employment relationship which includes dismissal as well[4]. In cases involving sexual harassment and racial discrimination, investigation should be initiated in the early stages and the investigation procedure must satisfy the requirements depicted in Section 103A of the Employment Relations Act 2000. In order to determine the fact that whether the dismissal was justified or not in accordance to the provisions of Section 103A of the Employment Relations Act 2000, the Employment Relations Authority and the High Court of New Zealand applies the test of justification. According to the provisions of Section 103A, the question of dismissal can be examined by depending upon the actions of the employer and whether the actions were fair and reasonable that would have been done by any reasonable man of ordinary prudence at the time of dismissal.
Comparison can be made regarding the provisions of Section 103(d) of the Employment Relations Act 2000, which states that, an employee develops personal grievances if such employee has been sexually harassed during the tenure of the employment. The concept of sexual harassment has been defined in the provisions of Section 108 of the Employment Relations Act 2000[5]. In order to comply with the provisions of Section 103(1) (d) of the Employment Relations Act 2000, the Courts of New Zealand has permitted the Employment Authorities to conduct in depth investigation. According to the provisions of Section 117 of the Employment Relations Act 2000, if an employee is sexually or racially harassed by an individual who is also an employee employed under the same employer or a client of the employer; if any complaint has been received regarding this, then the employer is at the authority to enquire into the matter in detail and take necessary steps on being satisfied with the relevant facts, for the purpose of preventing further repetition[6]. It is worth mentioning that employees who do not act as the representative of the employer are referred to as co-workers[7]. According to the provisions of Section 118 of the Employee Relations Act 2000, if there is a repetition of abovementioned behavior and thereafter any reasonable steps has not been taken by the employer for the purpose of preventing such repetition; then in such cases, the behavior of the co-worker is referred to as the part of the employee’s employer.
The liabilities on the part of the employer for the actions of the co-workers are same as those in the case of clients and customers under the provisions of the Employment Act 2000. In this regard, it is worth noting that, employers are generally not presumed to be liable under the Employment Relations Act 2000, unless and until there is a failure on their part to efficiently deal with the complaints and preventing repetition of such behavior. From the very beginning, the Employment Relations Act 2000 has proved to be beneficial in preventing the repetition of such behavior in workplace[8]. The approach taken by the Employment Relations Authority is entirely different from that of the Employment Relations Act 2000. In accordance to the provisions of Section 4(1A) (b) of the Employment Relations Act, it is important on the part of the parties bound by an employment relationship to act in good faith. Therefore the parties bound by the principles of employment relationship must actively and constructively establish and maintain a productive employment relationship for the purpose of effective communication. In this regard, it is noteworthy to mention here that, if the employee efficiently communicates with the employer regarding the harassment then, the employer can initiate investigation during the early stage. It is worth stating that, communication is an important medium for the purpose of delivering formal disciplinary processes. The provisions of Section 106 of the Employment Relations Act 2002, has been dealing with the liability on the part of the employers for the actions of their employees[9]. According to this Section, it is considered to be an unlawful act for an employee to sexually harass his co-employee during the tenure of the employment.
The employers in order to initiate external independent investigation must gain appropriate knowledge regarding the nature of the harassment before incurring any liability. In the case of Adkins v Turks Poultry Farms [1994] 2 ERNZ 368[10], it was observed that the employer has no knowledge regarding the continuance of harassment in the workplace. In this case, the victim Adkins resigned from the employment in order to save herself from the continued sexual harassment. However, in the initial stage, a complaint was made by her that was investigated and the harasser was warned and was ceased for such conduct. In such process, Adkins has not informed regarding the outcome of the complaint. Although the employer believed that the harassment ceased to exist, it still continued.
There is an ability on the part of the employers to adopt various responses regarding disciplinary matters. As a result of this the Courts of New Zealand applied for the justification test in accordance to the provisions of Section 103A. By applying the justification test, an employer will be able to adopt a variety of responses which can be applied by any reasonable employer of ordinary prudence. Furthermore, there is a possibility that, the employer may not investigate the interactions between the employees and expel the matter in question by stating that there is no authority to involve in private interactions. In this regard, problem arises in cases where the complainant has not mentioned specific legal provisions under which the complaint would be solved. However, if the complainant is not satisfied with the actions of the employer who failed to conduct detailed investigation in the workplace for the purpose of detecting allegations regarding harassment and discrimination. It is important to mention here that, if such behavior is not eliminated from the workplace by constant investigation and involvement then, there can be a recurrence of such behavior outside the premises of the workplace. In such cases, valid grounds are available to the complainant to take an action against the employer in regard to the provisions of the Employment Relations Act 2000.
For the purpose of achieving legal consistency under the provisions of the Employment Relations Act 2000, the Courts are the authority to consider the impact of such behavior on employment relationships. In this regard, much emphasis has been laid upon human behavior which is closely related to the process of central consideration under the purview of initial investigation on the part of the employer. The complainant must prove beyond reasonable grounds that the nature of the behavior is such that, it created unfavorable impact upon the working relationship of the aggrieved party. For instance, as a result of unfavorable impact of harassment and discrimination, it can compel the victim to leave the company by way of resignation. In such cases, the aggrieved party must establish a presumption that the employer should have initiated early investigation for the purpose of preventing such behavior from further occurrence[11]. For the purpose of counteracting the possibility of such presumption arising on the part of the employee; it is important on the part of the employer to adopt certain approaches in order to constitute employment relationships. It is worthwhile to refer here that, the question of employer liability may arise which can be explained in the context of various considerations that were taken into account in the previous investigation regarding the alleged misconduct.
Following further investigation on the part of the employer, the complainant must bring an action for claim under the provisions of the Employment Relations Act 2000. This creates an ability on the part of the complainant to take reasonable action against the harasser and the employer as well[12]. These cases reduce the likelihood of successful consequences. However, the central question revolves around the scope of employment that in fact provides a narrow concept of employment relationship as enshrined under the provisions of the Employment Relations Act 2000.
In the conclusion, it can be stated that, the Employment Relations Act 2000 has been functioning differently with varied perceptions regarding the scope of employment responsibilities. It is essential to confer here that, the nature of sexual harassment and racial discrimination within the tenure of employment does not operate in consistent with the Human Rights Act. It is evident that, employers may try to escape liability for a culture arising out of harassment and discrimination in the workplace in accordance to the Employment Relations Act 2000 if any formal complaint has been filed in regard to misconduct. Mention can be made regarding the fact that, the liability on the part of the employers under the legal framework of New Zealand is failed to take proactive steps for the purpose of ensuring a work environment free from harassment and discrimination. It can be finally concluded that, an independent investigatory body must intervene from time to time at the earliest possible way; for the purpose of educating the employers to gain appropriate knowledge regarding the existing compliances. In this way, it would prove to be beneficial in proceeding with any internal disciplinary investigation regarding the alleged discrimination and harassment.
References:
Anderson, Gordon. “The Common Law and the Reconstruction of Employment Relationships in New Zealand.” International Journal of Comparative Labour Law and Industrial Relations 32.1 (2016): 93-116.
Brown, Celeste. “Is there a need for greater regulation of insolvency practitioners in new Zealand?: Exploring the options for reform.” Canterbury Law Review 23 (2017): 111.
Hadfield, Chrystal. “Interfering with Choice of Law: The Employment Relations Act 2000 as an Overriding Mandatory Rule.” (2016).
Jiang, Hua, and Yi Luo. “Crafting employee trust: from authenticity, transparency to engagement.” Journal of Communication Management 22.2 (2018): 138-160.
Lambropoulos, Victoria. Rethinking the employer’s summary dismissal power in the employment contract. No. PhD. Deakin University, 2015.
McDonald, Paula, and Paul Thompson. “Social media (tion) and the reshaping of public/private boundaries in employment relations.” International Journal of Management Reviews 18.1 (2016): 69-84.
Rodriguez, Laura. “Principles that Should Govern the Right of Employers to Monitor Employee’s Computer Mediated Workplace Communication: Private Sector.” (2016).
Sendjaya, Sen. “Covenantal Relationship.” Personal and Organizational Excellence through Servant Leadership. Springer, Cham, 2015. 71-78.
Sjölin, Catarina, and Helen Edwards. “When Misconduct in Public Office is Really a Sexual Offence.” The Journal of Criminal Law 81.4 (2017): 292-302.
Vosko, Leah F., Andrea M. Noack, and Eric Tucker. “Employment Standards Enforcement: A Scan of Employment Standards Complaints and Workplace Inspections and their Resolution under the Employment Standards Act, 2000.” (2016).
Adkins v Turks Poultry Farms [1994] 2 ERNZ 368.
The Employment Relations Act 2000.
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