Worker wins $6200 after few hours at cafe

BILL MOORE
Last updated 13:00 15/02/2013
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A string of text messages worth a few cents each have ended up costing a small Nelson lunch outlet thousands in a damning decision by the Employment Relations Authority.

Authority member Michael Loftus has ordered the Salad Bowl to pay dismissed worker Amberleigh Howe-Thornley $5000 in compensation, $1215 for lost wages and $67.50 in wages for the few hours she actually worked before being sacked by text.

Ms Howe-Thornley claimed unjustified dismissal after events in August last year but the Salad Bowl denied the claim, saying she had only been on the Bridge St premises for an unpaid three-hour trial to see if she was suitable for hire.

This stretched over two days after her supervisor fell ill on the first day, and Salad Bowl director Randi Westphal texted her to ask her to come in again the following day, which she did.

At the end of the day Ms Westphal found the till had a $52.36 shortfall and concluded that Ms Howe-Thornley had taken a $50 note.

At 7.45pm she sent a text saying "No need to come into Salad Bowl tomorrow. We'll be in touch. Thx, Randi."

Ms Howe-Thornley, who was expecting to work on a new Salad Bowl food cart that wasn't ready, thought little of this, but on August 27, when the cart job was to begin, she exchanged a series of texts with Ms Westphal in which she was told there was no job, and was accused of taking the money, which she denied.

In his determination, Mr Loftus said that Ms Howe-Thornley had been preparing food for sale on the first day and serving clients on the second, and was thus working.

Ms Westphal had said that she paid people on work trial and in this case alone had decided not to when she found the money missing.

"The fundamental characteristics of an employment agreement are present."

Even if his conclusion was wrong, since April 1 2011 trial periods had to be confirmed in writing beforehand, and there was no facility for "unpaid experiments".

"It is arguable that the industry practice Ms Westphal evidenced of a short unpaid trial followed by a formal 90-day paid trial is an unlawful device which deprives prospective employees of their statutory rights," Mr Loftus said.

There could be no doubt that there was a dismissal, and there had been no compliance with the legal requirement for the employer to investigate the allegations, discuss them with the employee, allow time for a response and consider it genuinely before taking action.

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"Ms Westphal was making a serious accusation yet it was not raised and there was no discussion or attempt to ascertain what happened or why when the decision to dismiss was made.

"The folly of such a course is exhibited by the fact Ms Westphal originally thought Ms Howe-Thornley had removed two other items in addition to the money. She now accepts that was not the case yet it was in her mind and influenced the decision when it was made."

He said that although the Salad Bowl was a small trader, not even the most basic requirements of natural justice had been considered. The $1215 for lost wages represented 15 hours a week for the six weeks it took Ms Howe-Thornley to get a different job, with the $67.50 representing the money owed for the several hours actually worked on the two days.

The $5000 compensation was for hurt and humiliation. Ms Howe-Thornley had sought $7500, saying the hurt emanated from being accused of theft, and that the traumatising effect of her dismissal had continued despite finding a new job. He saw no evidence supporting the accusation of theft, Mr Loftus said.

The authority's decision can be appealed to the Employment Court. Ms Westphal told the Nelson Mail that she would "absolutely" be appealing.

She said she had set up the trial in accordance with advice from Work and Income and Nelson Employment.

"It's pretty standard to the way people are hired in Nelson. Everybody I know was hired that way."

If she had to pay the $6282.50 it "basically puts us out of business", she said.

- Nelson

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