Key Takeaways
- The Employment Relations Authority found that Kim Metcalfe’s dismissal of Keith Gorrett was procedurally unfair, making the dismissal unjustified.
- Despite the procedural flaw, Gorrett’s conduct – six weeks of unwanted sexual harassment, including explicit letters, requests for nude photos, and physical touching – was deemed serious misconduct that wholly contributed to the grievance.
- Because his actions amounted to serious misconduct, the Authority reduced any compensation to nil, ordering only a $500 payment to the Crown.
- The employer defended the instant termination as necessary to protect the employee’s safety and argued that following a formal process would have risked further harm.
- Gorrett described the process as the most traumatic experience of his life and declined further comment.
- Recent amendments to the Employment Relations Act 2000 now require the Authority to withhold usual remedies when an employee’s serious misconduct contributed to their personal grievance, removing discretion in cases like Gorrett’s.
- Employment law experts view the statutory change as more consequential than the Gorrett decision itself, signaling a stricter approach to misconduct‑related grievances.
Background of the Employment Relationship
Keith Gorrett, a man in his mid‑70s, was employed by Whangārei‑based Wynn Fraser Paints from 7 October 2024 until his dismissal on 26 February 2025. He worked as a branch‑level employee under the supervision of branch manager Kim Metcalfe. The employment relationship appeared routine until a female colleague, whose name has been suppressed for privacy, began receiving unwanted sexual advances from Gorrett. Over a six‑week period, the conduct escalated from inappropriate comments to explicit written propositions and requests for intimate images, ultimately prompting the employee to seek help from management.
Details of the Sexual Harassment Allegations
According to the Employment Relations Authority (ERA) decision, Gorrett sent the woman a heavily redacted letter the day before she requested a meeting with Metcalfe. The letter contained statements such as “you don’t come and hang out at the front counter anymore and I can’t imagine we would ever swap scents anymore, much less show me what bra you are wearing,” and expressed that his heart raced when they talked. Gorrett admitted to showing the woman his genitals, using sexually explicit language, describing a sexual act he wished to perform on her, and repeatedly asking her to send photos of her breasts. He also discussed erectile dysfunction with her, touched her bottom, and attempted to kiss her. The employee told the ERA that the behaviour was unwanted and had a detrimental effect on her wellbeing.
Employer’s Immediate Response and Procedural Shortcomings
Upon receiving the woman’s complaint, Metcalfe forwarded the letter and supporting evidence—including text messages and a photo of Gorrett’s naked upper chest—to business director Allan Gray. Gray convened an informal meeting with Gorrett, during which the employee admitted to the misconduct. Without following any formal disciplinary procedure, Gray terminated Gorrett’s employment on the spot, citing the need to protect the young woman from further emotional or possible physical harm. In a subsequent email to Gorrett, Gray acknowledged that he had not observed the formal process but saw “no benefit” in doing so given the employee’s admissions and the clear risk to the complainant’s safety.
ERA Findings on Unjustified Dismissal and Compensation
ERA member Simon Greening concluded that Gray possessed sufficient evidence to find that sexual harassment had occurred, thus justifying the concern for the employee’s safety. However, Greening identified “significant defects” in the disciplinary process: Gorrett was not given advance notice of the meeting, was unaware of the specific allegations beforehand, and was denied an opportunity to respond before being dismissed. These procedural flaws rendered the dismissal unjustified under the Employment Relations Act 2000. Consequently, Greening determined that $12,000 in compensation would be appropriate to redress the procedural unfairness.
Reason for Nil Compensation Despite Procedural Unfairness
The Authority then considered Gorrett’s own conduct. Greening described the case as “rare,” noting that Gorrett’s behaviour was not only blameworthy but also wholly contributed to the situation that gave rise to his personal grievance. Because the misconduct amounted to serious misconduct that directly precipitated the dismissal, the Authority deemed it appropriate to reduce any compensation to nil. Instead of paying Gorrett, the Authority ordered the employer to remit $500 to the Crown as a nominal penalty for the procedural lapse.
Employer’s Perspective and Justification
Allan Gray told NZME that he harboured no regret for his actions, maintaining that he acted in the woman’s best interests to prevent further emotional or possible physical harm. He argued that adhering to a prescribed process could have endangered the complainant, stating, “Imagine the sleepless nights if anything untoward had happened to the young lady while I deliberated.” Gray supported the ERA’s decision to award no compensation, emphasizing that the real victory was the employee feeling heard and protected.
Gorrett’s Personal Reaction
Keith Gorrett described the entire process as “the most traumatic thing that has ever happened in my life.” He expressed a desire to move on and forget the ordeal, declining to comment further on the case or the lack of compensation. His statement underscores the profound personal impact of both the allegations and the ensuing disciplinary process, even as the Authority found his dismissal procedurally flawed.
Legal Implications and Recent Statutory Changes
Employment law expert William Buckley noted that a 100 % reduction in compensation is uncommon, but highlighted that recent amendments to the Employment Relations Act 2000—effective February 2025—directly affect cases like Gorrett’s. The new provision stipulates that where an employee’s actions contributed to the grievance and constitute serious misconduct, the Authority must deny any usual remedies, even if the employee proves a personal grievance claim. Buckley observed that the conduct displayed by Gorrett exemplifies the behaviour the amendment targets, thereby removing the Authority’s discretion to award compensation in similar future cases.
Expert Commentary on the Future Impact
Buckley further argued that the statutory change will be more consequential than the Gorrett determination itself, as it imposes a rigid rule that limits remedial flexibility when serious employee misconduct is present. He predicted that employers will gain clearer guidance on handling grievances where the complainant’s own conduct is a significant factor, while employees will face a higher threshold for obtaining compensation when their behaviour has contributed to the conflict. The case thus serves as a practical illustration of how the evolving legal landscape seeks to balance procedural fairness with accountability for serious workplace misconduct.