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Don't do that Voodoo that you do so well
One of the world's most curious religions is widely practised in certain parts of the Caribbean and South America (and in a few of the southern states of the USA). Voodoo is a bizarre combination of the Catholic faith and the occult. Amongst other things, its devotees have a passionate belief that one can affect the mind and body of another person through a combination of faith and magic.
Although many cynical employers may say that the application of New Zealand's employment legislation often leads to results that can only be explained by a combination of faith and magic, employment problems involving voodoo are thankfully rare. However, as the recent decision in Nutter v Telecom New Zealand Limited (Unreported, Employment Relations Authority, Wellington, 24 January 2002) illustrates they are not completely unknown.
Mr Nutter worked for Telecom as a telecommunications specialist and had been managed for some years by Mr Knight. In the middle of last year, the business unit managed by Mr Knight was required to shift buildings. As part of this move, Mr Knight issued a floor plan showing proposed seating arrangements for the new building.
Surprisingly, this apparently innocent action caused a very serious employment problem to rise to the surface.
According to the seating plan, Mr Nutter's neighbour in the new building was to be a female colleague. This was something which was of great concern to her. She approached Mr Knight and told him that she could not bear to sit next to Mr Nutter. She said that there had been a history of banter and flirtation between the two which had culminated in a lunch which she had found disconcerting. She said that Mr Nutter had told her that he was making a voodoo doll of her, following which he took fluff off her clothing and a hair out of her head for the purposes of preparing his doll.
The two had exchanged emails following this incident, through the course of which it become apparent that Mr Nutter held some affection which the woman wished to repel. Mr Nutter's attentions did, however, continue to such an extent that the woman said that she even wondered if Mr Nutter had built a shrine for her in his house.
One cannot help but have some sympathy for Mr Knight at this point. After all, after seeking to do no more than develop a suitable seating plan for his employees he had been confronted with a bizarre tale of obsession and rebuked affection. To his credit he decided to take the woman's complaints very seriously. He recorded the woman's concerns in a letter which he gave to Mr Nutter. Mr Knight told Mr Nutter that the woman's concerns amounted to an allegation of sexual harassment.
Mr Knight met with Mr Nutter to discuss the different matters that his co?worker had raised. Mr Nutter accepted that he had flirted with the woman and that he had been morally wrong in pursuing her (because he knew that she was married).
Mr Knight then considered the information that he gathered from meeting with each of the two people involved. He decided that Mr Nutter's actions (including the behaviour concerning the voodoo doll) were inappropriate and unprofessional. He decided that he was justified in dismissing Mr Nutter from his job. In coming to this conclusion, he took into account the fact that Mr Nutter had previously been involved in other incidents involving similar behaviour on his part.
Mr Nutter challenged this decision as being unfair. He also challenged several aspects of the procedure that had been followed in reaching the decision to dismiss him.
The Authority accepted that there had been some deviation from a perfect procedure. It did, however, consider the decision to dismiss Mr Nutter was justified. Quite simply the Authority found that the employer had reasonably concluded that it could not be confident that Mr Nutter would not repeat similar inappropriate behaviour in the future. Accordingly, it dismissed Mr Nutter's claim.
The facts of this case send two important messages to employers.
First, the Employment Relations Act requires employers to consult with their employees about changes which may impact workers' collective interests. Clearly, a change such as a move to a new location (together with a new seating plan) requires some consultation with employees. In this case, a result of the employer following a sensible process of consultation was the revelation of a previously unknown workplace problem.
Secondly, this case provides a good illustration of the way in which an employer should proceed when it becomes embued with knowledge of a potential workplace problem. It would be tempting for many employers to avoid confronting the employee concerned, side-stepping the unpleasant task of taking such a difficult matter head?on by. Taking the easy route in this case could have led to a claim by the woman against the employer seeking compensation for turning a blind eye to sexual harassment. In essence, the employer acted appropriately to protect the woman's interests - and fairly in relation to Mr Nutter (by confronting him with the allegations and allowing him an appropriate opportunity to respond to them).
This case illustrates how an employer should confront even the most bizarre allegations of misconduct - not by ignoring them, but by addressing them with the same faith in proper process as Mr Nutter may have placed in his voodoo dolls.
