Employer appeals $8000 win for worker

SALLY KIDSON
Last updated 12:57 12/07/2013
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YOU'RE FIRED: The text message sent by Salad Bowl owner Randi Westphal that landed the company in trouble with the Employment Tribunal.

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A Nelson lunch stop that dismissed a worker via text message could be used as a test case around the legality of employees working for free before being hired.

The Salad Bowl was ordered to pay dismissed worker Amberleigh Howe-Thornley $5000 in compensation, and $1215 for lost wages and $67.50 in wages this year by the Employment Relations Authority. Ms Howe-Thornley successfully also argued for costs and is owed a total of $8104.

The Salad Bowl's owner, Randi Westphal, appealed the authority's decision and her case was heard yesterday in the Employment Court in Nelson before the court's chief Judge Graeme Colgan.

Before the appeal a district court bailiff seized equipment from the shop to pay the debt. This was returned after Westphal appealed.

Howe-Thornley, 18, claimed unjustifiable dismissal after she worked at the Salad Bowl for five to six hours last August.

Westphal said Howe-Thornley had been on the Bridge St premises for only an unpaid three-hour trial to see if she was suitable for hire.

Judge Colgan reserved his decision indicating he wanted to give a considered response.

He said the legal crux of the case was around employment trials or "whatever you might like to call them" and, as the advocates in the case had pointed out, there was no established case law on the issue.

Howe-Thornley told the court she applied for a job at the Salad Bowl in August last year after seeing it advertised in the Nelson Mail.

She handed in her CV and was asked to come in for an interview.

After an informal interview she said Ms Westphal told her she could not see any reason not to hire her and offered her 15 to 20 hours a week. She said Ms Westphal said: "You are hired."

"I understood from that conversation that I had a job."

There was no discussion about wages and no discussion about undergoing a trial period of work. She understood she would be working on a food cart, but would work in the shop for a few hours to get an understanding of how it operated.

Howe-Thornley said she worked for a few hours one day preparing food and serving clients. This stretched over two days after the Salad Bowl manager became ill.

She did not hear from Westphal for a few days and on August 27, when the cart job was due to begin, she exchanged a series of texts with Westphal in which she was told there was no job, and was accused of taking a $50 note from the till, which she denied.

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She was confused, hurt and upset by the accusation.

The whole experience had been traumatic and the publicity the case received had also been incredibly stressful and she had been to the doctor for help with the ensuing stress. The case had impacted on her self-esteem and dignity, she said.

Westphal testified that she had not hired Howe-Thornley and she believed that she was doing only a three-hour trial and if things had stacked up then she would be offered the job and given an employment contract.

She usually paid people in cash for these trials but decided not to pay Ms Howe-Thornley after she discovered a $50 note missing from the till. "Nobody expects to get paid. It's kind of my thank-you for their time."

She checked Howe-Thornley's references only after the trial, she said. She laid a theft complaint with police only in January before the Employment Relations Authority case.

Westphal said the unpaid trial was standard practice in Nelson in the hospitality industry and she set it up by looking at information on websites, including Work and Income and Employment Nelson.

Under cross examination she admitted she was inexperienced as an employer. Judge Colgan asked if it was wise to take advice from a Work and Income website if the prospective employee had nothing to do with Work and Income.

The previous ERA decision found that since April 1, 2011, trial periods had to be confirmed in writing beforehand, and there was no facility for "unpaid experiments".

- Nelson

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