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Heavy damages for workplace from the dark ages

MAY 2013

For those who remember the blockbusting super-marionation television series of the 1960s, the name Thunderbird One will conjour up thoughts of space-age technology, international rescue and people committed to protecting their fellow man.  A recent case will challenge that notion after an employer of the same name was ordered to pay more than $60,000 to a former employee who was discriminated against, sexually harassed, and constructively dismissed.  

The truck driver

Rachel Harrington started work with Thunderbird One Limited as a truck driver in September 2008.  It was not long before she began suffering unjustifiable treatment at the hands of her new employer.  This included being issued with a warning for damaging a vehicle, despite not being present when the damage occurred.  She was also threatened with disciplinary action for raising concerns about being asked to work beyond the statutory maximum number of hours for drivers.

The threat of disciplinary action was again put to Ms Harrington when she complained to the director, Justin Marshall, that her supervisor had inappropriately touched her on two occasions.   Mr Marshall responded that this complaint could result in counter allegations and disciplinary action.  Without even been spoken to in the context of an investigation, Ms Harrington was advised that her claim was unfounded.

Ms Harrington formed the view that as a female she was not welcome at Thunderbird One.  A key incident leading to this conclusion occurred on 15 December 2008 when she was asked to manhandle a load of 800kg.  The need to move this load resulted from the employer’s failure to supply a truck equipped with a hoist.  Clearly the employer did not consider contacting Thunderbird Two to take advantage of its hoist.  

Thunderbird Two would have made light work of the 800kg load

After initially trying to move the load, Ms Harrington refused.  Her colleagues then threatened that they would complain to management about her “inadequate performance”.  Ms Harrington suffered a stabbing pain when trying to move the load.

The next day Ms Harrington was subject to further altercations and aggressive and inappropriate comments, all in the presence of a manager who failed to act.  
Two days after her attempt to move the 800kg load, Ms Harrington began suffering further pain.  She tried to work through the pain, but it became too much.  Arriving at the Cromwell depot she sought assistance from her manager only to be laughed at and derided by other employees.

To make matters worse, Ms Harrington claimed that some workers blocked her access to the first aid and that she was refused from obtaining medical assistance.  This included Mr Marshall advising she would not be allowed to call an ambulance and that if she did it would result in disciplinary action.

After being taken to see a local doctor by her father, Ms Harrington was advised to seek urgent hospital assistance in Queenstown.  Mr Marshall refused to provide company transportation to Queenstown, suggesting instead that Ms Harrington seek assistance from a competitor one kilometre away.

Again, Ms Harrington’s father stepped in, taking her to the hospital in Queenstown where she stayed for a couple of days. 

The final straw

Ms Harrington’s return to work on 29 December 2008 would prove to be her last day.  A fellow employee criticized her and made an “inappropriate and hurtful comment” about her recent illness.  Ms Harrington had had enough.  She wrote out her resignation and left the workplace.

The determination

The Authority was in the unusual position of not hearing from the employer at the substantive hearing.  Clearly this would not have helped their position. Ms Harrington’s evidence was accepted in its entirety and the Authority concluded that she had been unjustifiably disadvantaged, discriminated against and sexually harassed.   The Authority also determined that the facts of the case illustrated a course of conduct and failures which would ultimately, and obviously, lead to resignation.  

Importantly the Authority added that on their own, the failure to address the sexual harassment complaint and the failure to assist with access to medical assistance for an obvious and serious condition, would constitute a breach of duty sufficient to cause the employee to resign.  

The remedy

Ms Harrington’s award reflects the multiplicity of her personal grievances. Compensation for lost wages covered a period of approximately 17 months.  During this time Ms Harrington was on a sickness benefit and claimed that she was unable to work.  The Authority factored in this benefit and awarded Ms Harrington $38,243.38.

In awarding the $25,000 for compensation the Authority Member considered that the evidence of the case was amidst the strongest he had heard.

Conclusion

Despite the space age connotations of the name Thunderbird One, the working environment in this case should be a considered as a relic of the dark ages.  The chauvinism and disregard inflicted upon Ms Harrington left her in a hostile and oppressive work climate.  She was left with nowhere to turn but to the law.  And like the true Thunderbirds, the law did not disappoint. 

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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