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Bottom-Biting and Reverse-Engineering
One of the most interesting places that I have visited is a small rural town in the desert of New Mexico called Roswell. It is a community legitimately proud of a number of famous exports (including Demi Moore). In the minds of many, however, it is better known for an event which is said to have occurred in July 1947.
Deep within the ranks of America's greatest conspiracy theorists is a significant group who claim that most of the great inventions of modern civilisation (including the jet engine and the super conductor) were "reverse?engineered" from technology which presented itself in the form of a crashed alien space craft which downed itself outside of Roswell shortly after the end of the Second World War.
The concept of reverse?engineering in employment law is not entirely unknown either. It seems that all too often an employee is tempted to emerge from the crashed wreck of an employment relationship looking back into the past for a way to hold their employer liable for causing the ruin. Like any good conspiracy theory, "reverse engineering" of this type is easy to allege and almost impossible to prove.
The recent decision of the Employment Tribunal in Barrett v Bright Wood New Zealand Limited (Unreported, Employment Tribunal, Invercargill, 15 January 2002) arguably illustrates some of the difficulties in this area.
It is perhaps appropriate to start Ms Barrett's story at its end - namely, with a conversation that occurred on 18 April 2000 in which Ms Barrett simply told one of her supervisors that she had had "a gutsfull" of her workplace. She did not offer any detailed reasons about this conclusion, nor did she provide any notice to her employer of her intention to resign. She simply walked out of her workplace and never returned.
A short time later, however, Ms Barrett served her former employer with formal proceedings seeking six months' lost wages and payment of $10,000 to compensate her for humiliation and loss of dignity.
Like the first scene in a Tarantino movie, the outward observer is left asking the question "how did this happen?". Ms Barrett provides the answers.
Ms Barrett commenced work at the Bright Wood Mill in July 1998 and started an apprenticeship course as a sawdoctor in November 1998. She said that between that time and her departure in April 2000 she had been the victim of four separate instances of sexual harassment and six incidents of what she called "general harassment".
Of these, the most extraordinary (and the one allegation that has captured the attention of the media) related to an event which was said to have occurred in December 1998 (one month after she started her apprenticeship). Ms Barrett says that she was drinking in a bar after work when one of her colleagues told her that "she didn't scrub up too bad" and (in what appears to be an attempt to demonstrate his approval of her appearance) kneeled down to try and bite her bottom. It seems that Ms Barrett was too fast for this amorous masticator and the incident concluded with the biter losing his false teeth on the floor of the pub (an outcome which the Tribunal described (presumably without any intended pun) as a result which made him the "butt of derision").
Strangely, Ms Barrett did not make any complaint to her employer about this attempted assault by her co?worker. Further, and perhaps more extraordinarily, her supervisor (who was in the bar at the time) did not think to raise the matter subsequently because of a concern that if he followed up every incident which happened out of work hours he would "never get any work done".
Ms Barrett's other allegations of sexual harassment involved the making of inappropriate sexual comments to her, the appearance of some objectionable graffiti in the Mill's wash room and an incident in which Ms Barrett said that she had been inappropriately encouraged to hasten her use of the Mill's toilet facility.
The incidences of "general harassment" involved a wide range of different matters including what she said to be unfair instructions given to her in using the Mill's equipment and the steps which the Mill took following allegations made by her employer that she had committed misconduct at work.
In brief, Ms Barrett's story painted a picture of a workplace which condoned sexism and unfair practices and which failed to take appropriate action to address workplace problems involving her.
The Tribunal was not without some sympathy for Ms Barrett. It accepted that she had been the victim of inappropriate behaviour (including the obviously objectionable bottom?biting incident). It was not, however, convinced by her arguments. The Tribunal said that the way in which Ms Barrett's case had been presented disguised an important fact: with the exception of one incident (involving the alleged abuse in the toilet facility) none of the matters relied upon by Ms Barrett had occurred in the last eight months of her employment. It concluded that some of the incidents to which Ms Barrett had referred had been raised to the employer's attention (in some cases over a year earlier) and that appropriate action had been taken. It dismissed her claim of unjustified dismissal.
It is possible to interpret the Tribunal's decision as a conclusion that following resignation from employment Ms Barrett attempted to construe the circumstances of her two years of employment in such a way as to apportion some fault to her employer. In other words, Ms Barrett had attempted to reverse?engineer the reasons for departure.
We cannot be certain that this conclusion of reverse? engineering is correct. Undoubtedly, Ms Barrett was the victim of unfortunate and objectionable behaviour on a number of occasions. What devalued her claim, however, was the fact that eyebrows were raised when she only made substantive objection to these incidents many months later, and following her rather abrupt departure.
As is often the case with unjustified dismissal claims we are left wondering whether an employee is sincere in their distress, or whether the Tribunal correctly saw through to a conspiracy within. All we can be sure of is, as in any good alien story, the Truth is Out There.
