Mr A. was a senior sales executive. He had been employed for 31 years by the same company and progressed in his career from being an operator in the factory owned by the employer right up to second senior sales position.
The New Zealand side of the company was accountable to a senior management team based in Australia – Mr G. was the Managing Director for Australia/New Zealand.
At an awards evening on 3 February 2012 Mr A. received a Silver Fern award in recognition of his sales achievements.
The ‘Serious Incident’
On 6 February he received an e‑mail from the General Manager that he was not to travel to Sydney to attend an upcoming sales meeting because of a “serious incident” that had occurred at the awards ceremony.
He then received a telephone call from the employer’s New Zealand Human Resources Manager telling him that that he was to attend a formal disciplinary meeting to explain why he had placed his hand on the buttocks of Mr G. whilst award photos were being taken.
He was told that he would have to go to a meeting with the HR people (Ms J. and Mr B.) and when he asked what he was alleged to have done to Mr G.; Ms J. informed him that he had “pinched his bottom”.
Mr A’s Response
Mr A. firstly responded to the allegations in a letter. He explained that when he went up to pose for the photograph he was told to come closer together for a better shot, and his hand may have slipped down Mr G.’s side and touched his bottom. If it did, he said it was completely unintentional and innocent and he “unreservedly “apologised for this if “this is what I did”.
Mr A also said that the allegations started off that he had placed his hand on Mr G.’s back side which was quite different to “pinching him”. He asked why the allegation had changed.
The Disciplinary Meeting
A disciplinary meeting took place after which Ms J. reached a preliminary decision whereby she said that she considered there were only “two reasonable and realistic options available”. Either to demote Mr A. and put him on a probationary period or terminate his employment.
Extraordinarily Ms J. found that “due to the seriousness of this matter and the loss of all trust and confidence in A. we have however made a preliminary decision to terminate A.’s employment on the grounds that he has acted in an unprofessional manner, breached the company’s harassment policy by engaging in sex based behaviour …”
Ms J essentially concluded that Mr G.’s statement that Mr A. placed his hand on his back side “cupping his left buttock” was sex based behaviour and breached the company’s harassment policy.
As an aside there is nothing in the decision about whether or not Mr A was gay or not.
The Authority’s Findings
The Authority member had to determine an interim reinstatement application. In other words Mr A. went to the Authority and asked to be reinstated immediately until the hearing of his grievance (that he had been unjustifiably dismissed) could be heard.
The Authority decided to look at a video that was taken of the Silver Fern award proceedings. Ms J. had found that there had been sexual harassment and that that Mr G. had made an “awkward and nervous laugh as the photograph was taken, pulled back and retracted as soon as the photograph was taken”
The Authority member “with due respect to Ms J.” found none of her findings were even remotely collaborated by the video recording. He also found that none of what Mr G. said happened (that he found the cupping of his buttocks shocking, appalling, leaving him feeling angry, disrespected and intimidated”) was even slightly confirmed by his demeanour in the video.
Indeed the Authority found that “if Mr G. was feeling “angry, disrespected and intimidated among other things” then his ability to disguise his feelings, if that is what he did, was little short of an Oscar-winning performance.
The Authority member determined that the overall justice lay in interim reinstatement.
As an aside I wonder what would have happened if at the award ceremony Mr A. (the aggrieved party) had instead touched the bottom of a female award winner. I wonder whether the employer would have dismissed him?