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Brief Counsel

Human Rights Review Tribunal – a better option than the Employment Relations Authority?

11 March 2014

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​Three recent decisions from the Human Rights Review Tribunal, all of which were resolved in favour of the employee, are a reminder to employers that their responsibilities extend beyond the Employment Relations Act 2000 to the
Human Rights Act 1993.

The decisions

Religious discrimination1

AFFCO was ordered to pay a former casual employee $12,118 in lost wages and $15,000 for humiliation, loss of dignity and injury to feelings.  It was also required to provide training to its management staff in relation to their obligations under the Human Rights Act 1993.

The case concerned a man who had been dismissed for refusing to work between sunset on Friday and sunset on Saturday because his religion forbade it.  The man had agreed at the job interview to work overtime but had asked to be assigned day shifts.

He was clear that he had not been asked about his availability over the weekend.  Equally, however, he had not raised the matter when asked whether he had any questions.  He had assumed that, as at his last job, overtime would be voluntary and worked out between employer and employee.

Age discrimination2

An unsuccessful job applicant who alleged that he had been discriminated against on the grounds of age was awarded the right to see the CVs, employment histories, qualifications and experience of the other applicants (including the successful applicants) who applied for the same two positions. 

An application by the company for a confidentiality order was dismissed, but the complainant was required to give a written undertaking to the Tribunal that he would respect the confidentiality of the documents provided to him.  This was a preliminary hearing.  The full proceedings are yet to be heard.

Sexual harassment3

A former prostitute has been awarded $25,000 in damages for emotional harm as a result of sexual harassment by her employer.

Chapman Tripp comments

The monetary awards issued in these cases are high by the Human Rights Review Tribunal’s previous standards and may make it a more attractive source of remedy for employees.

An employee is able to make a complaint to the Human Rights Commission against an employer if the employee considers that he or she has been discriminated against or harassed in breach of the Human Rights Act.  These claims will often have an overlap with the Employment Relations Authority as an unjustified dismissal or disadvantage claim relating to discrimination or harassment could be brought in either jurisdiction (but not in both).

The reason an employee may choose the Tribunal is that he or she is not restricted by the 90 day time limit which applies to personal grievance claims in the Authority. 

The good faith provisions in the Employment Relations Amendment Bill currently before Parliament will limit the degree to which employers will have to disclose information to an employee regarding other employees.  But, while this change will bear, for example, on an application by an employee passed over for promotion to see the CV of the successful applicant, it will not bear on an application by an unsuccessful job seeker to the Tribunal.

Non-employees cannot apply to the Authority, which can only hear cases involving employment relationships.

Our thanks to Vonda Hodgson for writing this Brief Counsel

For further information, please contact the lawyers featured.

Footnotes

1. Nakarawa v AFFCO New Zealand Limited [2014] NZHRRT 9

2. Waters v Alpine Energy Limited [2013] NZHRRT 8

3. DML v Montgomery and M & T Enterprises Ltd [2014] NZHRRT 6

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