Lunch-break sex no fault of firm

WELLINGTON - A company was not responsible for sexual activity between two of its workers during lunchtime at the home of one of the employees, the Human Rights Review Tribunal has ruled.

On June 30, 1998, the complainant in the case and defendant Bryan Hislop Smith, both employees of the Christchurch Press, went to Smith's home for lunch, the tribunal said in its decision.

At first they talked in the dining room and drank whisky. Then they moved to Smith's bedroom, where their encounter became increasingly sexual.

The complainant agreed to remove a brace so the defendant could give her neck a rub. Sexual activity followed, the decision said.

The complainant said that after she returned to work the enormity of what had happened hit her, and she complained to the company about Smith's behaviour.

She said Smith's conduct at his home was unwelcome and offensive, and that the encounter should be regarded as having taken place in the course of the defendant's employment by the Press.

As a result, she claimed she was a victim of sexual harassment, and asked for declaratory and other relief, including an award of damages to be paid to her by the defendant.

But the tribunal dismissed the claim.

"We have concluded what took place between the two parties at lunchtime did not involve any conduct by the defendant that was in the course of his involvement in employment," it said.

Smith was dismissed from his job at the Press on the grounds that he had sexually harassed a colleague, and that his behaviour amounted to serious misconduct.

The tribunal said Smith had asserted that the complainant was a willing participant in all that took place.

An unusual aspect of the case was the reasonably high level of agreement between the complainant and Smith about the essential events.

Where there were material differences in the evidence, the tribunal preferred Smith's version as the more reliable.

The majority of the tribunal were persuaded by the evidence that the woman had not found Smith's conduct unwelcome or offensive.

Their assessment was that as soon as the complainant parted company with Smith, the enormity of what happened hit her.

The minority view was that at a point late in the sequence of events the complainant suddenly found herself in a situation she did not like and from which she wanted to extricate herself.

The complainant's recollection was that she felt as if she had lost control of what was happening. She became fearful for her safety.

"Whatever her true feelings may have been, the reality is that she stayed in the defendant's bedroom in what was becoming an increasingly sexualised situation from which she could have removed herself."

The tribunal, then called the Complaints Review Tribunal, had considered the case previously, and at that time upheld the complaint against Smith and his employer.

Awards of $12,000 and $10,000 were made against the defendant and the Press.

But in June 2002, that decision was set aside by the High Court on the basis that Smith had not been given a fair hearing. As a result, the case was referred back to the tribunal for a rehearing.

The Press had been named as a defendant when proceedings were first filed, but shortly before the rehearing discussions between the complainant and company suggested the possibility of a settlement between the two.

The tribunal said it had not seen terms of settlement, but thought it safe to assume the Press must have agreed to pay something to the woman to secure the discontinuance of the claim against it.

- NZPA