Hired then fired? Worker argues she was dismissed before starting work

The Employment Relations Authority (ERA) recently dealt with a case involving a young woman who believed she had secured a position as a front of house staff member at a hospitality venue in Auckland.

The employer, a company operating a bar and a new hospitality venue, did not agree that she had been formally employed.

In this case, the worker saw a social media post about job opportunities at the new venue and, after a couple of interviews, including one with the company's owner, understood that she was employed as a front of house staff member.

However, before she could start working, the employer informed her that the role was no longer available and offered her alternative entry-level positions instead, such as a glasswasher or a "toilets and tabletops" role.

Background and context

According to the ERA, the recruitment process for the new venue was not standard, as the employer was looking to hire a large number of staff for various roles simultaneously. The social media posts advertising the positions were not very specific, and there was some confusion regarding the roles available.

During the first interview, the worker met with the venue manager of the employer's existing bar and was provided with an employment pack containing various documents. She was informed that if she was happy with the terms and the owner approved her, the job would be confirmed.

In the second interview, the worker met with the owner, who seemed positive about her as a potential employee and mentioned the possibility of moving from front of house to bar work. Following this meeting, the worker signed the employment agreement and other relevant documents provided by the office manager.

Worker's claim of unjustified dismissal

The worker claimed that she had been unjustifiably dismissed by the employer. She argued that she had signed an employment agreement for a front of house role and had accepted the position, but the employer had taken the role away from her before she could start work.

The worker emphasised that she was not required to accept the alternative roles offered by the employer, as they were not what she had initially agreed to and were effectively a demotion.

"She had not worked in the industry before, was offered a hostess or front of house role and understood that was what she was being employed to do," the ERA decision noted.

Initially, the employer maintained that the worker had not reached the point of being employed, as she was never offered a front-of-house role and had rejected entry-level positions.

The owner believed that the worker was simply expressing interest in front of house work but did not pursue that with her due to her inexperience.

However, during the investigation meeting, the employer's position changed. The owner acknowledged that a mistake had been made in offering the worker a front-of-house role at the pay rate of an entry-level position.

"[The employer] accepted that the LHQ venue manager and the office manager had decided to give [the worker] work … which was much smaller, and then move her up to Headquarters. That was the basis of the documents [the worker] signed and which were forwarded to the independent consultant," the decision stated.

ERA's findings and conclusion

The ERA found that the worker had a contract for service with the employer and intended to work for them, thus entitling her to bring a personal grievance claim. The trial period in the employment agreement was not effective, as it did not meet the necessary requirements.

Regarding the unjustified dismissal claim, the ERA concluded that the employer had acted unfairly:

"The company seems to have assumed that [the worker] could not have been offered a front-of-house job due to her inexperience, did not check what documents had been offered to her and not checked with the LHQ venue manager or the office manager."

The ERA determined that the worker was unjustifiably dismissed and entitled to remedies:

“[The worker] was unjustifiably dismissed and entitled to five weeks' wages plus holiday pay and Kiwisaver on that sum. Compensation of $12,000 is appropriate before assessing any contribution,” it said.

The ERA also noted the emotional impact on the worker:

"She was thrilled to have been offered work in this new industry to her. [...] She felt her world was pulled out from under her feet when the hostess role was withdrawn. [...] She was also publicly humiliated and embarrassed with friends and family commenting on the photo when she was not actually getting work with Headquarters."

In conclusion, the ERA ordered the employer to pay the worker lost wages, holiday pay, and compensation for humiliation, loss of dignity, and injury to feelings.

The case highlights the importance of clear communication and proper documentation in the recruitment process to avoid misunderstandings and potential legal disputes, particularly when a company is hiring a large number of staff for a new venture.