Discriminated against for not being Asian

Being non-Asian and a woman cost a Wellington employee a promotion, the Employment Relations Authority recently heard.

Wellington Nissan dealer, City Nissan, obtained a franchise to sell the Nissan Skyline range of cars as an exclusive "top end" sports/luxury car. As part of the franchise agreement, Nissan New Zealand required the appointment of a dedicated sales person.

City Nissan had two existing salespeople who could fulfill this role, Mr Lai and Amanda Easterbrook. It appointed Mr Lai without informing Ms Easterbrook of the vacancy, or giving her any opportunity to apply for it.

Ms Easterbrook complained to the Dealer Principal, Mr Van der Maas, who gave her reasons for the Company's decision. Giving evidence before the Employment Relations Authority, Ms Easterbrook claimed that Mr Van der Maas had said that the reason why she had not been appointed was because "an Asian would better suit the role" and that "she would not be taken seriously as a woman". Mr Van der Maas denied this and said that market research indicated that a segment of the possible market would be Asian and that Mr Lai's language (he could speak Chinese) would be an advantage.

Ms Easterbrook was upset about the decision and told Mr Van der Maas that she could resign over it. She pointed out that she was a female in a male dominated industry and that the company was discriminating against her.

The next day, Ms Easterbrook resigned and brought a personal grievance against the Company for unjustified constructive dismissal and discrimination in the Employment Relations Authority.

After investigating the matter, Authority member, Paul Stapp, preferred the evidence of Ms Easterbrook as to why she had not been appointed. He determined that Ms Easterbrook had been unjustifiably constructively dismissed and discriminated against, and awarded her $15,000 compensation for humiliation and distress.

The amount of compensation awarded was considerably higher than the average for personal grievance cases, and reflects the considerable hurt that discrimination can cause to a person. Employers need to be aware of the prohibited grounds of discrimination (sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origin, disability, age, political opinion, employment status, family status, and sexual orientation), and comply with them. Failure to do so can have drastic consequences as City Nissan found to its considerable cost.

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ERA classifies contractor as employee	Redundancy law unchanged by ERA
Loss of use of company car	Significant difference
Resolution of criminal charges	Redundancy and changed hours
Discrimination for being non Asian	Cannot take retaliatory action
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Abuse of Internet & Email	Suicide and communication
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Abandonment of employment

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