KEY POINTS:
Q: I work in the engineering industry. I've been here for about three years working in the sales department. Last month our sales manager left and I applied for his job. A colleague who started after me also applied. I had an interview for the job but my colleague was promoted instead of me. I have more experience than him and my sales record is much better than his. I was told it was because all the other sales reps are men and they need another man to manage them. I told the general manager this is discrimination but he said it's just business and said "would I really want to try to tell four guys what to do?". I still think this is unfair.
A: Your employer may have unlawfully discriminated against you under the Human Rights Act 1993 and the Employment Relations Act 2000. You could use the process under either of those acts (but not both) to take action against your employer. Your success would depend on the facts of your situation.
Under both the Employment Relations Act 2000 and the Human Rights Act 1993 it is unlawful discrimination if:
* Your employer promotes someone else instead of you.
* The successful employee has the same or "substantially similar" qualifications, experience or skills as you and is employed in the same circumstances as you, and the reason the other employee was promoted instead of you was (directly or indirectly) your sex.
In your case, whether your employer did unlawfully discriminate against you depends on two things:
* First, whether there is enough evidence that the reason you were passed up for promotion was your sex. There appears to be enough evidence of this, your employer has pretty much told you that you didn't get the job because you are a woman.
* Secondly, whether your colleague did actually have the same or "substantially similar" qualifications, experience or skills as you. This depends on the facts and would be examined closely if you brought a claim against your employer.
From what you have told me, you had better experience and skills than your colleague. But if, for example, your colleague had a management qualification and you did not, your employer would have been justified in promoting him to a management position instead of you if his better qualification was the reason for the promotion.
If you believe your employer unlawfully discriminated against you, you have two options:
* Ask the Human Rights Commission to assist you or give you more information. A mediator from the commission can assist you through their disputes resolution process.
* Apply to the Employment Relations Authority for resolution of a "disadvantage" grievance relating to unlawful discrimination.
Also, if you feel so upset by your employer's actions that you cannot continue working for your employer, you may be able to leave and claim you were "constructively" dismissed.
This means your employer breached its obligations to you so seriously that you had no choice but to leave.
You might then be able to bring a claim for unjustified (constructive) dismissal.
You should contact an employment lawyer, the Human Rights Commission or the Employment Relations Authority to find out more about your options.
* Lyndal Yaqub, LawyerDirect, (09) 300 3828, lyndal.yaqub@dlaphillipsfox.com
