Handing over mobile phone disadvantages employee…

The Employment Relations Authority has upheld part of a personal grievance claim for unjustified disadvantage in relation to an employee who was off on sick leave.  While the employee was on sick leave the employer asked him to return the company phone that he used. 

He did so, but the ERA held that being asked to return the phone was a disadvantage because he had been allowed to use the phone also for personal calls.  The return of the phone therefore disadvantaged him in his employment.  The ERA awarded $2,750 compensation for the unjustified disadvantage, but reduced that award by 40% because the employer had only asked for the phone back because the employee had refused to pass on any calls or messages to the phone while he was off on sick leave.  The director of the employer was personally fined $500 for aiding and abetting the disadvantage to the employee as she was the sole director and personally responsible for the actions taken by the employer.

The employer successfully defended claims for constructive dismissal and for her sexual harassment of the employee.  The ERA held that the employee resigned without ever raising allegations of sexual harassment with the employer and the employer could therefore not have taken any action to resolve any complaints.  The ERA examined extensive email and text communications between the female employer and the male employee, but could find no supporting evidence of any sexual harassment by the employer of the employee.

Alan Knowsley

Employment Lawyer Wellington