Worker Loses Constructive Dismissal Case Over Comments About Period Products in Men’s Bathroom

A woman who had worked for New Zealand’s Inland Revenue Department (IRD) for 14 years has lost her claim of unjustified disadvantage and constructive dismissal over a comment she made on an internal forum that other staff found offensive.

When Christine Massof became aware that IRD was providing period products to staff by placing them in both male and female bathrooms, she posted a comment on IRD’s internal intranet.

“This is awesome but a shame it took so long coming. And interesting, now that men can menstruate, free period products are available in IR bathrooms,” she wrote.

Her manager, Leah Galbraith, became aware of the comment when it was reported to her by one of the chairs of IR’s rainbow network, who explained that some employees were upset or offended by it.

The two had a meeting, after which Galbraith sent Massof a “letter of expectations” which said, in part, that the comment had breached Inland Revenue’s Code of Conduct.

“Your comments … were seen as a ‘dig’ at gender diversity at IR,” it read.

“While everyone is entitled to their own opinions, it’s essential to exercise discretion when expressing your views to colleagues, particularly in situations where those views could potentially cause offence or division among peers.

“If you are unsure … I suggest that you take a prudent approach and refrain from sharing your opinions altogether. Choosing to remain silent can prevent unintentional harm.”

‘Upset, Anxious, Ostracised’

A few months later—and following Massof taking an extended period of sick leave—she began reporting to a different team leader as part of a staff reorganisation, and her contact with Galbraith ended.

However, Massof said the meeting to discuss her bathroom had left her upset and anxious, and that, after returning from sick leave, she felt vulnerable and had been ostracised because Galbraith did not “acknowledge” her following her transfer to another team, and other members of staff did not say “good morning” to her.

In April last year, she filed a “statement of problem” with the Employment Relations Authority, claiming she had been unjustifiably disadvantaged in her employment, and that IRD had not acted in good faith.

A few days later, she resigned.

Then, in August, she raised a claim that she had been unjustifiably constructively dismissed. She argued that she did not have the opportunity to have a support person during her meeting with Galbraith and that the letter had disadvantaged her because it was disciplinary in nature, affected her prospects for promotion, and silenced her. She also said IRD had imposed a bathroom policy on her without consultation.

However, Authority member Claire English found that (pdf) the letter was not a disciplinary outcome, nor did it impose disciplinary consequences.

“The letter itself states that these are ‘expectations’ and is headed ‘expectation of behaviour,'” English wrote.

“The stated outcome if further concerns were raised in the future was further discussion. There is nothing in wording used in the letter itself to support the submission that this was a disciplinary outcome.”

IRD is entitled to require certain minimum standards of behaviour from its employees, and those set out in the letter “reflected the principles” of the employment agreement and code of conduct that already bound Massof, rather than being separate or new requirements.

No Disadvantage Found

English also found that the provision of free sanitary products in all bathrooms was not an unjustified disadvantage, as claimed by Massof.

“The provision of free product to all staff with no requirement for use or engagement by staff cannot be categorised as a disadvantage, much less an unjustified one,” she wrote.

And the claim that Inland Revenue had implemented a new policy of allowing staff to use bathrooms of their choice without consultation was “not borne out on the evidence. Ms Massof worked for IR for some 14 years. She was not able to explain when or how this policy was either implemented or changed by IR,” English wrote in her determination.

Massof’s claim of constructive dismissal also did not succeed because the employer did not force her to leave.

“Ms Massof’s evidence is that she did not want to continue in the workplace, not due to any breach of obligation by her employer, but because she fundamentally disagreed with workplace changes over a period of many years, and no longer wished to work there as a result,” English wrote.

“This does not amount to a constructive dismissal.”