ERA rules barista's dismissal 'fell so far short of the requirements of procedural fairness'
A barista has won $8,000 after the Employment Relations Authority (ERA) ruled that he was unjustifiably dismissed by his employer.
Tom McNally has been hired as a barista for Deeya Investments Limited, which is trading as Peel to Pip Café, in Auckland in April 2022.
McNally was hired, without a written employment agreement, by sole director Jaynisha Patel to work between 40 to 50 hours a week, six days a week, with an hourly salary of $23.65.
His employment relationship problem began when one customer failed to pay for their food and drink in May 2022.
According to McNally, he asked his co-worker, Patel's sister, to check if the customer had paid for their meal before leaving because he was busy making coffee at that time.
But instead of checking, his colleague went to the kitchen area, according to McNally, who confirmed himself that the customer left without paying.
Patel's sister, upon learning about the incident, said he would probably have "his pay docked for that."
McNally then informed the director about the incident and argued that he shouldn't be penalised after he had taken all reasonable steps in the circumstances.
The barista sent his employer a text that said: "Threatening to dock my pay is crossing a line. I'm not sure if I should come in tomorrow."
Patel responded saying: "We will probably just leave it here then, don't come back in."
ERA ruling on unjustifiable dismissal
After the matter was raised to the ERA, the authority ruled that McNally was unjustifiably dismissed by his employer.
"I find that the dismissal of Mr. McNally fell so far short of the requirements of procedural fairness and the concept of natural justice as to be considered as virtually no procedure at all," said ERA member Eleanor Robinson in the ruling.
Robinson pointed out that there was no investigation that occurred, that McNally was also not informed of any allegation against him, not given the chance to explain, and that there was no genuine consideration given to his explanation before he was terminated.
"Whilst I accept that Deeya Investments Limited is a small employer and as such lacked the resources normally available to a larger employer when dealing with disciplinary matters, I consider that there were major rather than minor flaws in the procedure adopted in terminating Mr. McNally's employment which cannot be explained merely by the fact that Deeya Investments Limited was a smaller employer," Robinson added.
She further pointed out that the lack of a written employment agreement between McNally and his employer was already a breach of the Employment Relations Act 2000.
Patel did not attend the investigation meeting held by the ERA, nor provided a statement in reply even after attempts from the authority officer to contact her.
The director, however, told the New Zealand Herald that she cannot afford a lawyer, which was why she didn't respond to the ERA.
According to Patel, the matter had put a lot of stress on their small, family-run business.
"This is my first business ever. I was born and bred in New Zealand but it's the first time I've ever thought about leaving," Patel told the New Zealand Herald.
Robinson has ordered Deeya Investment Limited to pay McNally $6,385.50 as lost wages, as well as $8,000 as compensation.
