'A fair and reasonable employer cannot tell an employee they are being dismissed for one reason, while dismissing the employee for other reasons'
A former kitchen hand of an Auckland-based bakery/cafe has won nearly $20,000 after the Employment Relations Authority (ERA) ruled that she was unjustifiably dismissed by her employer.
Tepora Taifau was hired as a kitchen hand at a cafe/bakery operated by the Spring 2017 Limited in February 2022, where she was offered a minimum of 35 hours per week for $20.50 per hour.
According to the employee, she began carrying out unpaid work starting February 10, but was not given an employment agreement until February 25, which was only backdated to February 16.
The employment agreement also had someone else's name in it and had a job description for an accountant, according to Taifau, who told the ERA that she had to request the document "a number of times" before she was granted one.
Once employed, Taifau said she was provided with less than 35 hours of work a week and was underpaid, receiving only $175 in her first week and $200 in her second week at work, according to the ERA.
The employee raised concerns about being underpaid and challenged the inaccuracy of payslips, some of which were only shown to her via mobile phone.
But these complaints led to her dismissal without notice on April 7, which she took to the ERA.
Spring's defence
The respondents of the case, who included sole director Osothary Lim and her sister Chanthavy, denied all the allegations from Taifau.
They disputed Taifau's reported February 10 start date and said she agreed to do unpaid work trial on February 14 and 15 instead of providing a work reference.
They also claimed that their advertisement for kitchen hand was for $19.50 per hour and for a minimum of 30 hours per week, but were unable to provide the ERA with a copy of the ad.
They also accused Taifau of having poor performance, attendance, and timekeeping, alleging that she had unapproved absences from work, was tardy, and would leave early without permission.
Her dismissal in April because of "serious misconduct," referred to the following disciplinary concerns:
- Poor attendance
- Continuously failing to follow instructions
- Not providing documentation of sick leave
- Late informing manager of absences
- Poor food quality (Undercooked or overcooked)
- Leaving work early
The decision for her dismissal, however, was reportedly made after March 22 when Taifau allegedly "screamed/shouted" at Osothary - a claim denied by the former kitchen hand.
The incident, however, was not mentioned in the dismissal letter, nor on the written warning they said was issued on the day of the alleged shouting incident.
ERA's decision
Taifau denied many of the accusations thrown at her by her former employer at the ERA, arguing that she was dismissed for asking what she was being paid for the hours she had worked because she believed she was underpaid.
The ERA ruled in the employee's favour, citing several factors, including how none of the alleged warnings from the respondents had been issued after a fair disciplinary investigation.
"Basic good faith and procedural fairness requirements had not been met at all, for any warnings," the ERA said in its ruling.
The employer also failed to produce wage and time records, as well as documentation on Taifau's unpaid trial period.
The employers were also unable to produce records about food safety events despite citing it as a reason for the kitchen hand's dismissal.
"These criticism of Ms Taifau's cooking of chicken and/or time keeping were never subject to a formal performance management process or a disciplinary process," the court said.
"It is up to an employer that wants to issue an employee with a warning to ensure that a fair and proper process is undertaken, the warning is properly documented and the employee is given a copy of it. None of that occurred."
The dismissal letter also did not accurately reflect the real reasons why the kitchen hand was sacked, according to the ERA.
"The reasons for the dismissal are to be assessed at the time the dismissal occurred. Meaning that what was recorded in the 7 April 2022 dismissal letter is taken to be the reasons for the dismissal, because those are the reasons Ms Taifau was given for her employment ending immediately that day," the ERA said.
It added the employers cannot rely on other alleged misconduct accusations as they were never documented nor formally raised to the employee to give her an opportunity to respond.
"A fair and reasonable employer cannot tell an employee they are being dismissed for one reason, while actually dismissing the employee for other reasons, that the employee had not been disciplined for, and which had not been disclosed to the employee."
As a result, the employers were ordered to pay Taifau $876.41 for wage arrears, $3,260.83 for unpaid notice, and $15,000 distress compensation for her unjustified dismissal.
