Employee terminated after placing his hands around an agitated customer's throat
A former café assistant in Nelson has been awarded more than $14,000 in compensation and lost wages after the Employment Relations Authority (ERA) found he was unjustifiably dismissed following an altercation involving an agitated customer.
The determination found that the café's directors effectively dismissed the employee via email without following any disciplinary process, in breach of both his employment agreement and the Employment Relations Act 2000.
What happened at the café
In June 2024, the employee was working behind the counter when a regular customer approached and began a conversation. According to his account, the customer became agitated and lunged at him during the exchange.
In response, the employee raised his hands in a non-threatening gesture, but also briefly placed his hands around the customer's throat, causing him to step back. He immediately apologised. The exchange was captured on CCTV, though the footage contained no audio.
The following day, the customer lodged a formal complaint with the café's management. The employee was asked by text to email his account of the incident, which he did by early afternoon, signing off with: "I'll see you on Saturday," referring to his next rostered shift.
Just under five hours later, management replied with an email quoting the serious misconduct clause of his employment agreement.
"I do believe it will result in instant dismissal effective from 4th of June," the email read, as quoted in the ERA document.
The employee was also told he could not attend the café premises. He was never charged with any assault, and no trespass notice was ever issued.
The ERA's ruling
The employer maintained the email was not a dismissal but merely the opening of a disciplinary process, and that the employee had abandoned his employment when he failed to attend his Saturday shift. The ERA was not persuaded.
The Authority found it was reasonable for the employee to have understood his employment had been terminated, and was critical of what the email failed to say.
According to the ERA, while the email cited the serious misconduct clause, it did not invite the employee to any meeting, outline a process, or offer paid suspension.
The text from management the following day, stating that their choices had been "removed," only reinforced his understanding that the decision was final, according to the ERA.
"It was therefore reasonable for [the employee] to have concluded that his employment had been terminated by the email and text message correspondence with [his employers] on 6 June 2024," the ERA said.
"This outcome was confirmed when [the employer] told [the employee] in a text message that her choices had been removed."
Did the employee abandon his role?
The ERA also rejected the abandonment argument, noting the employer never attempted to contact the employee when he did not show up for his shift, as his employment agreement required.
"The respondents did not follow the employment agreement clause in respect of abandonment," the ERA said. "Specifically, the respondents did not attempt to contact [the employee] to clarify the reason for his absence."
"As a result, [the employee] has established a personal grievance for unjustified dismissal."
The ERA accepted the employee's evidence of personal impact: disrupted sleep, loss of appetite, financial stress, and damaged confidence.
However, it found he bore partial responsibility for the situation, noting that placing hands around a customer's throat in an open café was conduct that could not be entirely excused. All financial remedies were reduced by 25%.
The final orders required the café to pay $6,771.38 in lost wages, $541.71 in holiday pay, $219.39 in KiwiSaver contributions, and $7,500 in compensation for humiliation and loss of dignity. Claims for personal penalties against the directors were declined. Costs were reserved.
