What constitutes harassment in the workplace?


Passing comments within an employment context can swiftly escalate into serious concerns if they are perceived as discriminatory, particularly when related to race or sex. Such comments can lead to significant repercussions for the employer involved. Both the Employment Relations Act 2000 and the Human Rights Act 1993 establish legal frameworks that prohibit sexual and racial harassment in the workplace. In the recent case of Hunter v Medina Trading Limited [2023], an employee, Scarlet Hunter, pursued legal action against her employer, alleging racial and sexual discrimination as well as workplace bullying.


Background of the Case

Scarlet Hunter was employed as a junior housekeeping supervisor at Medina Trading Limited. Her employment history included a period of work with the company on a working holiday visa, with a temporary departure before returning to New Zealand. Hunter raised several instances of discriminatory behavior directed towards her within the workplace.


One of the incidents involved Hunter making coffee a couple of minutes after her shift had begun, which seemingly triggered an aggressive reaction from her Housekeeping Manager, Ms. Utku. Allegedly, Utku’s actions included gesturing and vocal expressions that Hunter found distressing. Another incident occurred when Utku messaged Hunter expressing a refusal to hire Latinos in the future, which Hunter perceived as derogatory and demeaning. Hunter also mentioned feeling humiliated due to Utku’s messaging behavior in group chats, which included a negative emoji alongside Hunter’s name. Additionally, Hunter claimed Utku sexually harassed her by commenting on her appearance, suggesting her messy red hair made her look like she had engaged in sexual activity and criticising her choice of clothing.


Authority’s Analysis and Verdict

The Employment Relations Authority ultimately found that Scarlet Hunter’s allegations of racial and sexual discrimination lacked credibility. For the first incident, two other staff members offered contrasting accounts that suggested Utku’s actions were not intended to be aggressive or discriminatory. While the court acknowledged that the Latino comment and emoji use were unprofessional and hurtful, it concluded that the comments did not inherently amount to derogatory conduct. Regarding the sexual comment, the court determined it was made in jest, with both parties sharing a laugh, and that Hunter was not offended. The court also ruled that Utku’s mention of the V-neck tee-shirt was a reminder about the company’s dress code, rather than sexual harassment.

However, the Employment Relations Authority found a number of other breaches, predominantly in relation to wages, rostering and rest and meal breaks. The Authority reinforced that the threshold for establishing constructive dismissal is high, however ultimately found the standard had been met, and she was entitled to remedies.


Key Takeaways

This case highlights that not all inappropriate or unprofessional behavior qualifies as harassment. Employers must ensure to thoroughly investigate and follow the necessary procedures when such incidents are reported by employees.

If you believe you are experiencing workplace harassment or bullying, please do not hesitate to get in touch with the Watermark Employment Law team. We are happy to assist you.