The Employment Relations Authority has ordered a Dunedin restaurant to pay compensation to a former employee for distress and lost remuneration after it found she was unjustifiably dismissed.
The determination of the authority released recently found former kitchen hand Michelle Morgan had grounds for a personal grievance against The Lone Star Cafe, operated by Thru Now Ltd, on Princes St, Dunedin.
Authority member Phillip Cheyne, of Christchurch, said Ms Morgan started her job in November 2008 under a casual employment agreement, and in January 2009, she was offered permanent part-time work under a new employment agreement to which she did not agree.
On March 4, 2009, she developed dermatitis on her hands as a result of her work in the kitchen, and over the following weeks she asked to finish work early on a couple of occasions because of the irritation it caused to her hands.
The company said this placed significant pressure on other staff and it was a cause of concern to them at the time.
Lone Star chef Todd Trewek told the authority that Ms Morgan finished work early on Sunday, March 22 because of her dermatitis, and was going to see her doctor.
Mr Trewek tried to contact Ms Morgan on Monday (March 23) to see if she was fit for work that evening, but when he could not contact her, he removed her from the roster for March 23, 24, and 25.
When she turned up to work on Monday, she was given a letter asking her to make a decision about accepting the new contract offered in January, because the restaurant was unable to offer casual hours in her "current role".
She was given a deadline of 5pm, Tuesday, March 24, 2009.
She contacted the restaurant's general manager, Dave Belle, concerned about the contract.
She was sent a second letter extending the deadline to 5pm on Wednesday.
That Monday she found her name was no longer on the roster and she said she was told by Mr Trewek she was unfit and would not work for the rest of the week.
Mr Cheyne said despite the ultimatum in the letters given to Ms Morgan on March 23 and 24, 2009, the company said she was never dismissed or disadvantaged.
Removal from the roster was "simply related to whether she was well enough to work and had nothing to do with the ultimatum in either letter".
Mr Cheyne said there was no evidence Ms Morgan was unfit from March 23 to 25.
"The company breached the agreement to employ Ms Morgan when it removed her from the roster for the Tuesday and the Wednesday. That is sufficient . . . to establish an unjustified disadvantage grievance.
"The company did not act as a fair and reasonable employer either. Mr Trewek should have discussed with Ms Morgan his concerns about her fitness for work before making the decision to remove her from the roster."
Mr Cheyne said given Ms Morgan's employment was ongoing rather than casual, the company's decision to remove her from the roster and not offer further work, was sending away or a dismissal.
"There was no attempt by the company to justify a dismissal. Accordingly, I find that Ms Morgan was unjustifiably dismissed and she has a personal grievance against the company."
Thru Now Ltd was ordered to pay Ms Morgan 2.4 weeks lost wages and $1500 compensation for distress.
