Lost Employment Case Studies

Employee who resigns receives payout

A teenage girl has been awarded more than $3000 after she was found to be unjustifiably dismissed from her job at a fish and chip shop in Kaikoura.

Amy Walker was employed as a junior assistant at the Top Shop fish and chip shop in Kaikoura, the Employment Relations Authority said. Ms Walker started working for Gael and Peter Watson at the Top Shop in 2013. A dispute arose when Ms Walker was meant to start a shift at midday on January 16 this year. Although it appeared a series of text messages had been exchanged between the parties, neither were able to produce a full set of text messages, the authority said.

Telephone records obtained by the authority confirmed there were a number of texts and phone calls passed between the parties over this period. The authority found that Ms Walker had sent her manager, Richard Hill, a text message shortly after midday which said: ” I’m not coming in I’m over feeling unappreciated and being put last even tho I have been there the longest.” Mr Hill then tried to call Ms Walker, but she sent him a text message and said she was upset and crying and could not call him back.

She said she then sent another text and said she wanted to hand in her notice and finish the week, although Mr Hill claimed he did not receive the text, the authority said. When she did not receive a reply she called Mrs Watson and explained that Mr Hill was difficult to work with, the authority said. Mrs Watson was sympathetic, but told Ms Walker by not showing up for work she had lost her job, the authority said. Ms Walker said Mrs Watson also told her they had replaced her and did not need her to finish out her week. When Ms Walker did not show up for work for the next three days, Ms Watson said she assumed she had resigned.

Authority member David Appleton found that Ms Walker was unjustifiably dismissed.

“By her words on that day, which included telling Ms Walker that she had been replaced, Mrs Watson terminated Ms Walker’s employment summarily, without giving Ms Walker any opportunity to explain why she had not turned up for work that day, or to explain why she got so upset.” However, Mr Appleton did agree that Ms Walker did owe a duty to her employers to show up to work or give adequate notice to warn them if she could not, and reduced her remedies.

Mr and Mrs Watson were ordered to pay Ms Walker $183 for lost wages, and $3,750 for remedies. Costs were reserved.


Fired for using internet and running a side business, receives payout

An account manager fired for her excessive internet use and who used work time to run her two small businesses has been awarded $5000 by the Employment Relations Authority.

The authority ruled Antonina Knight was unjustifiably dismissed by Printek Supplies Limited in December 2013. It heard 85 per cent of Ms Knight’s role was internet-based, included finding and researching clients, using the MYOB accounting system, updating the business’ Facebook page and creating promotional material. However, after the company began experiencing telephone connectivity problems, an investigation found it was due to excessive Facebook and YouTube usage. Authority member Tania Tetitaha said although Ms Knight was cautioned at a disciplinary meeting in November 2013 for excessive internet usage and for using work time to operate her own businesses, her subsequent dismissal was immediate and abrupt.


“There was insufficient investigation, no prior raising of the concerns with Ms Knight, no opportunity for Ms Knight to respond to the concerns about Facebook and excessive internet use before the dismissal decision was communicated to her.

“These defects were not minor and did result in Ms Knight being treated unfairly for non-performance and excessive use of the internet.”

Before the authority, the company accepted it did not have a policy about internet use and conceded Ms Knight’s dismissal did not follow due processes, but argued that it came against a background of concerns about dropping sales and customers being unable to access its phones.

They added that even if they had investigated Ms Knight’s actions, there were difficulties because Ms Knight had deleted her browser history. Ms Tetitaha said “standing back and looking at the evidence, it is at best equivocal”. “Ms Knight’s conduct was not misconduct a fair and reasonable employer could have dismissed her for.” Ms Knight sought compensation for hurt and humiliation totalling $10,000, claiming that the company’s lack of process left her “shell shocked” and she had to endure the humiliation of leaving in front of other staff that had been told about her dismissal before she left.

She also said her dismissal had a financial impact upon her family and said she suffered depression requiring counselling.

However, due to the sparse evidence supporting her claim, Ms Tetitaha said $5000 was appropriate in the circumstances.


Employee who tells boss to go F*#% himself receives payout

A forklift operator who told his boss to go f*** himself has been awarded a further $7400 after earlier receiving $5600 for unfair dismissal.

Ian Gabites worked at Carter Holt Harvey Wood Products in Richmond, near Nelson. On 26 November last year, Mr Gabites’ acting supervisor asked the forklift operator if he’d finished a job he was asked to do. Mr Gabites responded with: “Go f*** yourself,” according to an Employment Relations Authority decision. Two disciplinary meetings followed. Mr Gabites was sacked on December 6 for using “threatening language” towards the supervisor. Mr Gabites said he was unjustifiably fired and the language used was “meant in fun”. In May, the Employment Relations Authority said the supervisor mentioned nothing in a written complaint about the language being threatening.


The authority said a fair and reasonable employer should have given Mr Gabites a written warning, to make it clear saying “go f*** yourself” was unacceptable and would result in serious consequences if used again. Mr Gabites said he enrolled with four temping agencies and became a weed-whacker and recycling truck worker after he was sacked.

In May, the authority awarded Mr Gabites $5600 for humiliation, loss of dignity, and hurt feelings.

Authority member Helen Doyle said Mr Gabites also deserved three months’ lost wages. The authority didn’t have enough evidence in May to decide what this amounted to so Ms Doyle advised both parties to figure this out. The parties were unsuccessful in doing so but in a new decision, Ms Doyle ordered Carter Holt to pay Mr Gabites $4387.54.

The forklift operator would have been awarded more but his payout was cut by 20 per cent because Ms Doyle said he “did not need to and should not have said what he did.”

Ms Hoyle decided on $3071.56, for costs and a filing fee.


30k payout for firing

A woman sacked by email shortly before her 90-day trial period ended has been awarded more than $30,000.

Naturopath Vicki Martin was hired by Healthy Living Trading Company, which traded as the Hardy’s health stores chain, but was fired 80 days into the job. Hardy’s argued at the Employment Relations Authority that it was within its rights during the trial period. The company also said it had concerns about Martin’s work. But the ERA ruled that it did not raise those concerns with Martin – and said that it could not rely on the trial period in her employment agreement. The controversial labour law was introduced in 2011, but Labour spokesman Andrew Little said the case was evidence of the confusion among many employers and workers about how 90-day trials worked.

Martin, from Auckland, was inducted on May 14 last year and signed an employment agreement the next day to work as a researcher and writer about Hardy’s products. The employment agreement allowed for her to be fired on a fortnight’s notice if her performance wasn’t up to scratch. It also referred to “employment reviews” that would have to precede any decision on whether Martin met her employer’s standards. On August 2, Martin was fired, with Hardy’s emailing her at 3.31pm, saying the sacking was effective immediately.
She was given two weeks’ pay. Authority member Robin Arthur said Hardy’s failed to observe good faith obligations to Martin. Arthur said it was problematic that Hardy’s did not ensure Martin signed an agreement before starting work on May 14.This virtually voided the agreement signed the next day – making it untenable for Hardy’s to “exercise the advantages” of the 90-day trial provisions.


An agreement with Hardy’s was offered a week before but Arthur said it was “oddly worded” and not signed. Staff had “concerns” about Martin’s ability to work to deadlines and deliver the output Hardy’s expected. But these concerns were never “put squarely or plainly” to Martin during her 11 weeks of employment.

“Accordingly, the failure to properly address performance concerns with Ms Martin was an unjustified disadvantage – it was not something that a fair and reasonable employer could have done, even if the trial period provisions had been valid and enforceable,” Arthur said.


The authority heard Hardy’s brand manager Margaret Hardy accepted Martin was never told her job was at risk. But Hardy said her style was to “nurture, not criticise” so she provided positive feedback to Martin.


The authority decided Martin should be awarded $20,700 for lost wages and $10,000 compensation for humiliation, loss of dignity and hurt feelings.


“One of the problems with the law is, it sends a signal to employers that there are no kind of standards anymore, I expect there are a lot of cases that are probably unlawful dismissals but no one’s ever taken any action.”


Compensation for pot smoking employee


A man accused of smoking cannabis at work has failed in his attempt to get his job back.


But Aaron Brown was awarded three months’ wages and $1500 compensation after the Employment Relations


Authority found he was unjustifiably dismissed from his job at Ballance Agri-Nutrients Ltd in Mount Maunganui.
On December 12, 2013 Mr Brown and his workmate Shaun O’Connor went to a local shopping centre for their lunch break, a decision from the ERA said.


The next day Mr Brown’s supervisor Alex Beck called them to a meeting and said he had received a phone call from a member of the public who had seen them smoking “pot” in Mr O’Connor’s car.


The pair were told they had to undergo a drug test, and a refusal of the drug test would amount to serious misconduct.


Mr Brown’s drug test came back non-negative and he was immediately suspended.


At a meeting the next week Mr Brown told his supervisor he smoked marijuana recreationally, but not at work, the ERA report said.


He was dismissed from work.


Employment Relations Authority member Anna Fitzgibbon said in her decision that Ballance did not have the grounds to request Mr Brown undergo a drug test.


She said a complaint from a member of the public wasn’t a reasonable cause to make the two men submit to a drug test.


Mr Beck told the authority that Mr Brown had exhibited unusual behaviour on the day of the drug test, which supported the reasonable cause test. However, Ms Fitzgibbon did not accept this.


Mr Brown was awarded three months’ lost wages, but Ms Fitzgibbon did not order his reinstatement.


She said reinstatement would not be appropriate because Ballance no longer trusted Mr Brown as an employee after he admitted to recreationally smoking marijuana at home.


He told the authority he had stopped smoking marijuana after he was suspended from work but failed to provide any evidence of this.


Mr Brown was awarded $1500 in compensation.


The authority earlier found Mr O’Connor was unjustifiably dismissed. He was awarded $10,857 for lost wages, and


$3000 compensation for humiliation, loss of dignity and injury to feeling.


A spokeswoman for Ballance was not immediately available for comment.