ERA rules bum slap “fun”

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A slap on the bum was just a “fun slap” and not sexual harassment, the Employment Relations Authority has found in a recent case.

Ella Newman, a former garden assistant at The Plant Place in Hamilton, resigned the day after the business's director Bruce Sanson “slapped” her on the bottom and alleged he had sexually harassed her during her two-years with the business.

In a letter she gave to Sanson she stated: "I am writing you this letter to let you know that your behaviour towards me at times is inappropriate. Lewd comments and behaviour are making me feel uncomfortable..... Hitting me on the backside is completely unacceptable and is sexual harassment, this is an offence…This letter is also my resignation."

Newman then lodged a claim with the ERA that she was sexually harassed and unjustified constructive dismissal. She said following the incident she felt she had no other option but to resign and that her resignation amounted to an unjustified constructive dismissal.

Sanson, who the authority heard held Newman in high regard, admitted slapping Newman on the bottom, but said it was a “fun slap” and there had been no indication from Newman that she was offended by it.

The Authority found that given the context it should have been taken as a joke, and therefore did not meet the threshold of sexual harassment.

Employment Relations Authority member Anna Fitzgibbon said the bottom slap was "inappropriate and should not be repeated" but took place during a joke.

"Ms Newman was being cheeky about Mr Sanson's floppy hat and he slapped her on the bottom. It was a one-off slap, which I accept was a 'fun slap'," she said.

She also found Newman's claims of "ongoing sexual harassment" were vague, inconsistent, and there was no evidence to back up the claims. Fitzgibbon also found that Newman had not raised the allegations of sexual harassment with Sanson during her employment.

"In my view, Ms Newman had an obligation to raise any issues she may have with Mr Sanson," Fitzgibbon said.

"If, as she initially thought, Mr Sanson had accidentally touched her, bringing this to Mr Sanson's attention may have resolved the matter. Ms Newman failed to do so."
The Authority also rejected her claim she was unjustifiably constructively dismissed by The Plant Place.

“On an objective basis, I do not consider the slap on the bottom that occurred on 28 December constituted sexual harassment under the Act. Ms Newman sought to rely on this incident to support her claim for constructive dismissal. I do not accept Ms Newman was able to do so. On the balance of probabilities, I find Ms Newman was not sexually harassed in her employment by Mr Sanson. On the balance of probabilities, I find Ms Newman was not unjustifiably constructively dismissed by The Plant Place. Ms Newman’s claims therefore fail.”
 
Newman told the New Zealand Herald she felt “let down” by the authority and intended to appeal the decision.

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