The Employment Relations Authority recently slammed an employer with $60,000 in fines and compensation orders after finding sexual harassment.
The successful applicant, Seulbi Gang, worked for construction company KNCC. She claimed that one of her supervisors, Jae Jeong Jang, had acted inappropriately towards her from the outset of her employment.
When Gang reported this conduct to other employees and then to the director of KNCC, no action was taken and Gang subsequently resigned. Along with her resignation, Gang provided a written statement to the Board of Directors of KNCC that detailed her experience at the company and requested KNCC address these issues.
The Authority found that Gang had been sexually harassed and that no action had been taken by KNCC to deal with her concerns when raised. Consequently, the Authority upheld Gang’s claims of constructive dismissal and unjustified disadvantage, as well as imposing a fine on KNCC for the failure to provide her with a healthy and safe working environment.
This case raises two important questions; what constitutes sexual harassment, and what is the liability of employers for the actions of their employees?
The answer to the first question is spelt out in the Employment Relations Act which defines sexual harassment as behaviour that is unwelcome or offensive, or contains an implied or overt promise of preferential treatment, or an implied or overt threat of detrimental treatment.
In Gang’s case, Jang’s behaviour included telling her that she would be more sexually appealing if she wore sexy outfits and suggesting that she try to be a “honeytrap” in the KNCC showroom. He also stood very close to her when she was seated at her desk, banging her chair deliberately, and asking sexually charged and threatening questions.
The Authority had no difficulty in finding that the conduct of Jang, who was Gang’s senior, was unwelcome sexual harassment of a repetitive nature.
The next question considered by the Authority was whether KNCC was liable for Jang’s actions or otherwise culpable. The Employment Relations Act provides that where an employee is subject to sexual harassment by another employee (or a customer or client), and makes a complaint to their employer, the employer must look into the matter and take “whatever steps are practicable to prevent any repetition of such a request or of such behaviour.” Where the employer fails to take those practicable steps, the employee will be deemed to have a personal grievance against the employer.
In this case, when Gang reported her concerns to the director of KNCC she was told “to be more careful around Mr Jang because he had a reputation for these sorts of actions”. Upon resigning from KNCC, Gang was told by the director to sue Jang personally “but still forgive him and give him some latitude”.
Unsurprisingly, these responses were not deemed satisfactory by the Authority. Gang had unequivocally raised her concerns about Jang’s behaviour with KNCC and the Authority found that KNCC “took no action to address them, and I find that in those circumstances her resignation was a foreseeable consequence of its total failure to act”.
Due to its failure to take appropriate action to prevent a repetition of the conduct, KNCC opened itself up to liability for Jang’s conduct and paid a hefty price for it.
This case serves as a timely reminder to employers of their obligation to keep their employees safe from sexual harassment in the workplace.
Where a claim of harassment is raised with an employer, they should inquire into the matter and take whatever steps are practicable to prevent any repetition of the events. Failure to do so exposes employees to unacceptable risk and creates a culture of benign indifference.
this article was originally published on thepost.co.nz on 17 May 2023
