It was argued that in the present case there are three components of the claim, namely sexual harassment, wrongful dismissal and breach of an implied term of trust and confidence. It was submitted each are linked in a way which allows the associated jurisdiction of the court to be properly invoked, that three components arose out of the employment relationship between the Applicant and the Respondent and that that relationship is one of the limited categories of relationship in which a sexual harassment claim under the SDA may arise. In addition to the employment nexus for each of the three components, it was further argued that there is a common substratum between the sexual harassment and the wrongful dismissal.
The first was that the Applicant's employment was terminated within a few weeks of the alleged sexual harassment. It was submitted that there is at least an apparent linkage between the events, in the sense that the employee allegedly suffered sexual harassment at work and was then finally dismissed.
Further, it was argued that one of the acts of sexual harassment (allegation 2) which is alleged, namely the words, "Ta ta ass wipe Glenny boy" were written allegedly on a cabinet, and the employment was terminated several weeks later. In their ordinary meaning, it was submitted, those words convey a threat of termination of employment, which occurred shortly thereafter.
Reference was made to the statement of the Applicant to the Commission dated 18 January 2006, adopted by the Applicant in the affidavit in support before this court, and it was submitted that there was a further linkage between the sexual harassment and the termination of employment, where the Applicant describes distress over the harassment and that he took time off at the suggestion of the human resources officer of the Respondent.
Upon returning to work, it was argued, the Applicant remained in fear of further harassment and left employment again on 10 August in a state of acute anxiety. It was on return to work on 17 August that the Applicant's employment was terminated, allegedly being on the basis of "being late to work and lying and causing trouble in the workplace". It was submitted that from that account the harassment of the Applicant was closely linked with the termination of employment, given the Applicant only worked some two or three days between the harassment complained of and the termination of employment.
Further, it was submitted that the claimed reference to the reason for dismissal being in part "causing trouble in the workplace" as a basis for the termination emphasised the common substratum of facts. It was argued that it appears likely that the termination of employment was linked to the harassment and the complaints made about it by the Applicant.
It was further submitted that the Respondent's own case emphasises the common ground between harassment allegations and termination of employment. Reference was made to the defence, which, it was submitted, shows that the termination of employment and sexual harassment claims arise from the same substratum of facts.
The Applicant referred to the defence where the Respondent claimed no notice was required to be given of termination "because the Applicant engaged in conduct for which the Respondent was entitled to exercise its right of summary dismissal" (paragraph 10(b) defence). It was submitted no particulars were provided as to what material was relied upon in support of the pleading and it was submitted it may well be linked to the Applicant's complaints of sexual harassment.
It was noted that correspondence from the solicitors for the Respondent to the Commission provide some guidance to the alleged misconduct where reference was made to unspecified damage to company property, lying to managers about how long the Applicant had spent in his car because he was frightened to come to work and union representatives having advised that the Applicant's colleagues were refusing to work with him as he was "deliberately lying about events in the workplace". It is argued by the Applicant that central to the allegations were allegations similar to those before this court of sexual discrimination.
If the Applicant was required to commence an action for wrongful dismissal in the State Magistrates' Court then it was submitted that similar issues would need to be agitated in those proceedings to meet the suggestion that the Respondent had an entitlement to summarily dismiss the Applicant. The claims, it was submitted, are interlinked and interdependent. It was argued that, applying the principles set out in Re Wakim, the harassment and wrongful dismissal claims in the present case arise from common facts and are linked as part of the same continuum of facts.
It is further noted that the basis of the claim for breach of implied term of trust and confidence relate to the same facts of sexual harassment. This applies to the failure to investigate sexual harassment and the decision to terminate the employment and lack of fairness involved.
It was submitted that in dealing with the breach of implied term of trust and confidence, consideration must be given to the same conduct which is alleged to constitute sexual harassment together with the Respondent's investigation of those allegations and the decision to terminate the Applicant's employment. It was submitted a different court considering the contractual claim would be required to consider much of the same ground and make findings of fact on issues that are currently before this court. That process would involve duplication and expense and be contrary to the interests of the parties.
In dealing with the specific allegations and in response to the suggestion by the Respondent that the allegations could not constitute sexual harassment or a claim which might properly be described as one of a sexual nature, it was submitted that the allegations could properly be regarded as conduct of a sexual nature. It was noted that in Te Papa the court also referred to, "Conduct of a sexual nature may include 'exposure to sexually explicit or offensive material and sexually suggestive jokes'".
It was submitted that throwing something like Liquid Paper at the Applicant's back and using the expression "This is Morris fucking you" (allegation 3) is a description of a sexual act. It was submitted this was explicit and it was submitted further that if the circumstances were different, to the extent that the claimed victim was a young girl in the workplace, where the same event occurred with the same words, then it would clearly have the capacity of constituting sexual harassment.
In the present case, it was submitted, the Applicant should not be disentitled from the protection of the legislation where, it was submitted, the central words complained of in allegation 1 are clearly capable of referring to conduct of a sexual nature.
As I understood the submissions from the Applicant, the other allegations set out earlier could properly be regarded as allegations. Whilst allegation 1 stands alone the other two allegations form part of what is described as a "pattern of conduct which is so closely related to the first allegation as to render them as part of the harassment of the Applicant".
It was further submitted that allegation 2 involving the alleged use of the words, "Ta ta asswipe Glenny boy" may also be regarded as sexual in nature and that it goes beyond abusive conduct. It was noted that admissions were made in relation to that comment, though the Respondent argues that it does not constitute sexual harassment. Nevertheless, it was submitted that persons engaging in the use of that language do so "at a risk of allegations being made of sexual harassment".
It was conceded that the alleged writing on the whiteboard of the words, "Beware of Glen Cate. He is out to get you" (allegation 3) do not of themselves demonstrate comments of a sexual nature. It was argued, however, that those words and the use of them on the whiteboard are part of a "course of conduct". Accordingly, it was submitted, that should properly remain as part of the allegations to be considered by the court at trial.
Cases relied upon by the Respondent, it was submitted, can be distinguished from the specific words allegedly used in this case and particularly the first and second allegations referred to earlier in this judgment. It is further submitted that a reasonable person, having regard to all of the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated by use of the words in allegations 1 and 2.
Reference was made to decisions concerning summary dismissal and it was submitted that it is only in clear cases that a strike-out option should be taken by the court and that the power should be used with great caution. Section 17A of the FM Act should not preclude an Applicant from the right to trial of what could be described as a clearly arguable claim with a reasonable prospect of success.
It was further submitted that the Briginshaw test should not apply and that the allegations in the present case should require the Applicant to do nothing more than show, on the balance of probabilities, that the conduct occurred. It was submitted that the question of the appropriate test is a matter for trial and not a matter which should be imposed when considering an application for summary dismissal.
It was submitted that although the human rights claim arises specifically under the relevant statute it is still possible for the Applicant to join common law claims to a jurisdiction with that statutory foundation.
It was submitted that the allegations in this matter could not be regarded as trivial and the "de minimis" submission made on behalf of the Respondent should not succeed and that the claim is one which the Applicant is entitled to have determined, even if it is not a claim which might be regarded as being in the upper end of the scale of sexual harassment.