'Dry humping' and 'genital flicking' in the construction industry

2:00AM Thursday October 23, 2008

At what point do you stop making allowances for industries with "different" workplace cultures?

Partly as a result of TV shows involving celebrity chefs such as Gordon Ramsay, one common perception of chefs is that they abuse and swear at their staff. Some would say that people who go into such an industry willingly must adapt to its culture. The old cliché comes to mind: "if you can't stand the heat ...".

A recent construction industry case demonstrates that this argument only goes so far.

The employee who brought the claim worked for the company between 2005 and 2008 (the Employment Relations Authority made an order preventing publication of the names of those involved). The employee complained about a series of incidents involving workplace antics such as "dry humping" and "genital flicking".

He said in one 2007 incident, the company's managing director approached him from behind while he was bending over and "rubbed his genital area" against his backside - a term the Authority described as "dry humping".

The employee said he was shocked and immediately took evasive action.

At a Christmas function the same year, the employee said he was the subject of another unpleasant experience, which the Employment Relations Authority referred to as "genital flicking".

"This was a process where, when a group of workmates were standing together, typically in a social environment, one or other of them would flick at or near the genitals of a colleague nearby, allegedly with purpose of making the recipient spill his drink."

The managing director acknowledged the genital flicking had taken place, and after the employee had protested twice, he desisted, and told staff "not to flick [the employee's] balls because he doesn't like it".

The employee's solicitor wrote to the company warning of the behaviour but the company replied by suggesting it was endemic within the industry.

After the genital flicking incident, the employee was left out of a Christmas fishing trip because "the company could not guarantee his physical safety".

He also alleged the managing director had made offensive remarks about what the MD would like to do to his daughter. The Company's witnesses gave evidence that all women related to company personnel were "fair game", in terms of this sort of teasing, including the MD's wife.

The employee left his job as a result of the stress he had suffered, and ended up a sickness beneficiary.

Interestingly, the Authority said that the witnesses accepted many of these incidents probably happened, but that the behaviour is endemic in the industry and the employee in effect needed to "harden up".

The Company referred in its defence to "rituals of Kiwi mateship", and said that "such rituals underpin the culture of the building and construction industry. It is not intended as sexual and is not viewed by those in the industry as sexual."

The Authority said this view was misconceived, and it was difficult to see how it could be anything other than sexual. The Authority had no hesitation in concluding that the employee had suffered an unjustified disadvantage.

The Authority said that it was not enough for the employer simply to protect him from further such incidents as it only ostracised him, and that a good employer would have taken steps to remove the culture altogether.

The Authority ordered the Company to pay compensation of $12,500 plus lost earnings between when the employee left, and the date of the hearing (about 7 months).

This case shows that while the Authority may make allowances for common practice in a particular industry, it will draw a line at behaviour that by any sensible standard is inappropriate. And arguments about the "rituals of Kiwi mateship" will not help.

Greg Cain

Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.

Photo:Greg Bowker

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