Employer failed to comply with minimum good faith requirements
Miss Earth New Zealand 2023, Caitlyn Smythe, has been awarded more than $28,000 in compensation after the Employment Relations Authority (ERA) ruled that she was unjustly dismissed.
The ERA found that Smythe was unjustifiably dismissed by her employer, Ernestina Bonsu Maro of EBM Models.
Smythe's journey with EBM Models began in August 2022 when she attended a free workshop hosted by Bonsu Maro.
At the workshop, Smythe was offered a casual contract with the modelling agency, believing she was officially employed under the terms outlined in the agreement. However, despite working several modelling events for EBM Models, she was never paid for her services, nor did she receive a copy of the signed contract.
Smythe's repeated requests for payment and her signed contract were ignored by Bonsu Maro. The situation escalated when, in April 2023, Smythe received an unexpected "Letter of Exit" from Bonsu Maro.
In the letter, Bonsu Maro told Smythe that she "will no longer need you on our EBM Models (sic) books, due to EBM Models expectations, but also respecting your personal choices with your journey in this particular industry."
Smythe sought clarification but received no explanation for the sudden termination of her employment.
Following this, Smythe submitted a grievance to the ERA, claiming unjustified dismissal and non-payment for the modelling work she had completed.
But Bonsu Maro denied that they were in an employment relationship, claiming that she operated a "community platform" only to run free community events and workshops.
The ERA's investigation found significant breaches of employment law by Bonsu Maro, ruling that Smythe had indeed been unjustifiably dismissed.
According to the ERA's findings, Smythe's employment was confirmed through her signed agreement, which Bonsu Maro failed to provide a copy of, in violation of Section 64 of the Employment Relations Act 2000.
It also pointed out that there was no attempt from Bonsu Maro to meet her obligations by providing Smythe with access to information or an opportunity to comment before she was dismissed.
"There was no fair or proper process adopted by Ms Bonsu Maro before she unilaterally decided to end Ms Smythe's employment without notice. There was no consultation. No issues of concern had been raised with Ms Smythe before she was dismissed," the ERA said.
"The failure to comply with minimum good faith requirements and the lack of compliance with any of the minimum procedural fairness requirements fundamentally undermined Ms Bonsu Maro's ability to justify Ms Smythe's summary dismissal."
The Authority also noted that no wage or time records were kept, as required by the Act, and that Smythe was not paid for the hours she worked, breaching the Wages Protection Act 1983 (WPA) and Minimum Wage Act 1983 (MWA).
The ERA emphasised that Smythe had not been working as a volunteer but had entered into an employment relationship with Bonsu Maro under the terms of the signed agreement, which included an expectation of payment for her modelling work.
The ERA found the written agreement, which clearly referred to Smythe being "employed under a casual contract with EBM Models," was intended to create a formal employment arrangement.
The failure to pay, despite these clear terms, was a violation of the most basic employment rights.
"The written agreement Ms. Bonsu Maro gave Ms. Smythe to sign expressly recorded payment arrangements which stated the minimum EMB clients would be charged for experienced models was $50.00 per hour," the ERA said. "Ms. Bonsu Maro also sent messages to Ms. Smythe and another model who gave evidence that said… 'with my brand my models get something. They don't work for free.'"
As a result, the ERA ordered Bonsu Maro to pay Smythe $28,782.60 in total compensation.
This amount includes $3,250.57 for unpaid wages, KiwiSaver contributions, and holiday pay, as well as $15 for a work-related expense. Additionally, Smythe was awarded $20,000 for the distress caused by her unfair dismissal.
The ERA also imposed a $6,000 penalty on Bonsu Maro for her multiple breaches of employment law, of which $3,000 is to be paid to Smythe directly as part of the penalty.
