Each year the Employment Relations Authority and higher courts release judgments which give guidance to how the employment legislative framework should be interpreted and indicate how similar disputes will be decided in the future. 2016 is no different. Two cases in particular will be heard this year with potential implications for businesses.
H v A Limited
This case was heard in the Employment Court in 2014 and concerned the dismissal of a pilot (Mr. H) after it was alleged he had sexually harassed a 19 year-old flight attendant (Ms. C), during a stop-over. The employer’s interviews with other staff members were not recorded and the investigator did not consider whether Ms. C’s account had been influenced by her colleagues’ reactions. Inconsistencies with the accounts had also not been raised.
The Court found that the employer’s investigation had been defective and the dismissal was unjustified. Mr. H was reinstated following the Court’s finding that that an employer cannot rely on a lack of trust and confidence to oppose reinstatement if the investigation resulting in that loss of trust was flawed.
The case had been appealed on the grounds that the standard of enquiry imposed upon the employer was too stringent and bordered on judicial investigation. The decision will have significant implications in the application of the test of justification under s103A when investigating and disciplining employees
Terranova Homes & Care Ltd v Service and Food Workers Union Nga Ringa Tota Inc
This case has placed pay equality in the spotlight and it has been argued in this case that, while the wages paid to caregivers are the same whether male or female, wages are lower than they would be if caregiving of the aged were not work predominantly performed by women. This is essentially a ‘nurses versus firemen’ debate and argues that occupations that have been traditionally seen as ‘women’s work’ are less valuable and attract a lesser rate of pay.
We expect that the Employment Court will set out the principles of the Equal Pay Act 1972 and provide employers some guidance as to their obligations under the Act.