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What actions can an employee take if their employer abuses their power?

The Human Rights Review Tribunal recently decided an important case on sexual harassment. Although strictly speaking it was not an employment case, there are aspects of the case that could be relevant to employment disputes.

Human Rights Review Tribunal 300x295The facts took place in provincial New Zealand in a church context.

The plaintiff (P) had a stillborn baby. The birth was traumatic for her. She developed post-traumatic stress disorder.

P’s profound grief led her to become a parishioner at a local Anglican church and to be counselled by a priest assistant (Reverend) who held a licence as a priest. He began helping P with her grief and trauma issues, following the death of her baby.

She claimed that the reverend sexually harassed her on several occasions and on one occasion forcibly attempted to have sexual intercourse with her. P took proceedings before the tribunal seeking a declaration that the reverend discriminated against her by sexually harassing her and sought $150,000 damages for humiliation and loss of dignity and injury to feelings.

The relationship between the reverend and the Anglican Church was similar to an employment relationship.

Initially there were three defendants to the proceedings: the reverend in question; the local bishop; and the vicar of the parish in question. The bishop and the vicar initially defended the claim using the technical arguments you would expect from a lawyer.

Later, to their credit, the vicar and the bishop abandoned their defences, admitted that the reverend in question had a pastoral role that included providing spiritual counsel and advice, and that he was their agent. At that point in time P was seeking a total of $100,000 for humiliation and distress. The settlement included that they would pay the $100,000 compensation.

A public apology was made to P. The diocese agreed to improve its processes to protect parishioners. The claim against the bishop and vicar was withdrawn.

At that point in time P had been paid the damages she was seeking in her litigation. Subsequently, she amended her claim for humiliation and distress from $100,000 to $150,000. Her claim against the reverend continued.

The tribunal held that the reverend did use language and physical behaviour in the course of providing services to P that was of a sexual nature on multiple occasions. It was unwelcome. Sexual harassment was established.

The tribunal decided that the $100,000 P first sought was the appropriate remedy. No award could be made because P had already received $100,000 compensation for the same humiliation from the bishop and vicar. P did not seek costs.

The case is significant because the reverend in question took no part in the proceedings. He said he could not afford the costs. His position was that what occurred was consensual and he admitted no wrongdoing.

A complaint to police did not result in a prosecution. All of the evidence about what occurred was from P and her witnesses.

The case is important because of the trust that P put in the reverend to get much needed help. The reverend was in a position of power. The abuse of power was significant. The relationship between an employer and worker is also one where trust and confidence is at the heart of the relationship.

Our Employment Relations Act acknowledges the imbalance of power between employers and employees.

The tribunal sometimes has overlapping jurisdiction with the Employment Relations Authority. Privacy cases in an employment context would normally be heard by the tribunal, but discrimination matters (including sexual harassment) can be heard in either.

There have been some very high awards for humiliation and distress in the tribunal.

Two cases stand out. The first was about photos of a cake shared on Facebook. The claimant (H) had resigned from her employment with Credit Union Baywide, the defendant in the case.

A cake was baked for a party attended by some employees of the defendant, after H left. Unfortunately, the top of the cake had been iced with the words “NZ CU F… You.” The side of the cake had the obscenity “C...” inscribed on it.

Next a photograph of the cake appeared on H’s Facebook page. Only those accepted as H’s friends had access to the photograph.

The company gained access to the Facebook page and took a screenshot of it. This was sent to multiple employment agencies in the area with a follow-up phone call.

Pressure was brought to bear on H’s current employer. Ultimately H resigned. She was unemployed for 10 months. Although the case arose in an employment context it was to be determined under the Privacy Act and by the tribunal.

The tribunal found the employer breached an information privacy principle. Significant remedies were awarded. Awards were made for lost income, career regression and legal costs. Significantly $98,000 was awarded for humiliation, loss of dignity and injury to feelings.

Another sexual harassment case saw a humiliation and distress payment of $120,000, along with other remedies.

Compensation awards in the employment jurisdiction have increased significantly over recent years, but awards of $98,000 or $120,000 are practically unheard of.

Employees with discrimination claims might bear this in mind when deciding where to pursue their claims.

Returning now to the reverend and his parishioner. Sadly, P technically got no award of humiliation at all from the tribunal.

She had received $100,000 from the bishop and vicar settling her claim against them and that was all she was seeking at that stage. The tribunal decided it was the appropriate amount, and that she could not be compensated twice for the same hurt and humiliation.

It may seem P had to go through a three-day hearing and then effectively gained nothing. That is a risk of litigation.