The following employment case provides some good lessons if you are an employer thinking of filling a position within your organisation. You need to have a fair process and not discriminate against anyone through the application process - whether they are an applicant or an existing staff member.
Ms E. claimed that her Wellington employer, City Nissan, discriminated against her by employing another employee in a position that she knew nothing about until she was told of the appointment. She claimed that this was sufficiently serious to cause her to resign and claimed that her resignation amounted to a personal grievance.
Ms E. was employed without any direct experience in the industry in the role of a new vehicle sales person. City Nissan obtained the franchise to sell the Nissan Skyline range. A person needed to be appointed to sell them. It was decided that there were only two current employees who could be considered to fill the role, Ms E. and Mr L ( who was of Asian descent) .
Mr L was offered the position. The first thing Ms E knew about it was when she was told of Mr L’s appointment. Ms E. said that was told by the employer that he had been appointed because:
1. Market research showed that the predominant purchaser of the type of vehicle would be Asian and as Mr L was Asian he would better suit the role.
2. She would not be taken seriously as she was a woman
The Employment Relations Authority found that reference made by the employer about Mr L being Asian to suit the role and that as a woman Ms E. would not be taken seriously by other dealers was discrimination and this was reason enough for Ms E. to resign.
This discrimination was compounded by the Company’s decision not to let Ms E. have any involvement in the application process. The authority found that Ms E. should have had at least the opportunity to apply for the job selling Nissan Skylines.
An award of $15,000.00 was made to Ms E. for compensation for humiliation and injury to feelings.
There are two clear lessons for employers from this case:
Firstly, it is important to have a transparent process when you are appointing within your organisation. That is to say, staff should be told how the application or promotion process for particular positions is to be administered.
Secondly, if you discriminate against employees on any grounds (in this case, race and gender) you break the law.
In either case, as you can see, it can be costly if you don't follow the rules.
Mary-Jane Thomas is Preston Russell's employment law partner. You can contact her by clicking here.
