It followed partial resolution of a sexual harassment complaint with the Human Rights Commission against her employer and the man who had been contracted to a position there as a branch manager.
While the complaint against her employer was resolved with a confidential settlement, the complaint against him personally was not resolved.
The Human Rights Review Tribunal has called the sexual harassment endured by the woman the most serious of its kind. Photo / 123rf
The woman then went to the review tribunal claiming her human rights had been breached because she felt compelled to comply with his “subsequent numerous requests for sex”.
She also claimed he sexually harassed her by repeatedly subjecting her to unwelcome sexual behaviour and language in the course of her employment.
Harassment ‘significant in nature’
In a recently released decision, tribunal deputy chairwoman Jane Foster and members Patsi Davies and Baden Vertongen said the sexual harassment was significant in nature and was ongoing and frequent.
They said even if the woman had agreed to the sex and may have at times engaged in “flirtatious text messages” that did not mean she did not find the language and behaviour unwelcome or offensive.
“Many women will put up with an environment in which unwelcome or offensive sexual conduct is prevalent rather than risk losing employment, and for many making a formal complaint would be a last resort,” they said.
The tribunal found the branch manager had initiated a “quid pro quo” arrangement of sex in exchange for work benefits, and therefore the claim was proven.
The manager, who cannot be named without breaching a broad suppression order that applies to the bus company and woman, denied the claim. He said he had sex with her on multiple occasions because they were “having a casual affair that had nothing to do with work”.
Struggling to get by
The woman worked as a bus driver from 2017 to 2021 for a company that operated school and charter bus services.
She initially had no guaranteed work hours under her employment contract but was employed to do a particular bus run for four days a week, or about 16 hours.
The woman, with dependent children, struggled to live on what she was earning and told her employer she wanted more regular hours and charter work.
The employer gave her some charter work and promised she could take over another run once it was free, to give her more regular hours.
The woman took steps to learn the new run and act as a back-up driver in the meantime, but it was then assigned to another driver.
In late 2018, she moved to the branch depot, run by the manager who had been contracted to grow the charter side of the business.
The woman opened up to him about her difficult financial situation and how she did not want to go back on the benefit.
One day in February 2019 they joined other drivers on a charter run.
The branch manager then “ordered” the woman to stay after dropping off the passengers and allowing the other drivers to leave.
A conversation between the pair followed, in which he did not dispute that he initiated a discussion about them having sex.
Afraid to report what happened
The woman was upset and unsure how to respond. She considered reporting it to her employer but believed his word would be taken over hers because of the revenue he brought to the company and she was scared she would lose her job.
About three weeks later the pair had sex but afterwards the man was cold and snappy, as if “blaming her for cheating on his wife”.
She hoped for no repeat but was wrong.
The requests stopped temporarily in mid-2019 when the woman began a relationship with a colleague, but they resumed when that relationship ended.
The woman said his demand for sex increased and only stopped during the Covid-19 lockdowns in March 2020 but they started again later that year.
The woman first complained to her employer in December 2020 but it was not acted upon.
She complained again after receiving “yet another lewd text message” in February 2021, the tribunal said.
Affair ‘not plausible’
The manager’s evidence was that between February 2019 and November 2020 they had sex multiple times and it only ended when they were both “over the affair”.
He described it as being about “physical release for good mates”, which was in no way romantic.
The tribunal said his account that it was an affair was not plausible but a “self-serving attempt to justify and try to avoid responsibility for his actions”.
He acknowledged sending the woman “hundreds of text messages of a sexual nature”.
The evidence showed all but one of the requests were made by text on his work phone and he referred to the sex as “extra work”, which happened at the office and on the buses parked there, the tribunal said.
If she did not have sex with him, he would go out of his way to give charter bus hours to others, even if she was free, the tribunal said.
She later described a sensation of being trapped and controlled, “like a $2 hooker”, and felt deep shame, degraded, anxious, upset and angry about feeling pressured to have sex with him to keep her job.
The tribunal said the woman’s evidence included details that were unlikely to be fabricated and were consistent with the sex being unwanted.
The woman’s account was also supported by the fact she ended up taking stress leave in April 2021 because of the “unbearable work environment” that included her having an accident in one of the buses.
The employer offered another bus run, but with significantly fewer hours.
In late April 2021 she filed a personal grievance claim against her employer for making no moves to investigate her complaints or create a safe working environment.
She resigned the following month, despite not having another job to go to, the tribunal said.
Having regard to the findings, the tribunal considered damages of $100,000 were appropriate, reduced to $60,000 after deductions that recognised compensation received from her former employer in the earlier claim.
The woman was still suffering from the effects of the abuse and had since moved to another part of the country to try to heal.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.