A supermarket assistant who was fired after calling her boss a “bitch” in front of a co-worker has won almost $13,000 in lost wages and compensation.
Raeena Naiker had been working at Pak’nSave Porirua for two years when she developed a health issue – as she didn’t have enough sick entitlement to accommodate the illness, Naiker asked to use annual leave instead but her manager refused.
Naiker became upset as a result of the rejection and claimed the manager was being unfair – she then vented these sentiments to supervisor Sialuga Talo while in the store’s break room.
However, Talo was uncomfortable with the comments made by Naiker and reported the conversation to fresh food manager, Daniel McKissock.
McKissock then asked Talo and another employee who had been present during Naiker’s outburst to provide individual statements.
"F***, man, other staff are allowed to take leave but not me. Bitch," Talo recalled Naiker saying.
However, the other employee in the room – Jarrod Gardiner – claimed Naiker had used the term “f*****g bitch.”
Naiker was subsequently called to a meeting and presented with the allegations of abusive language – during the conversation, Naiker insisted she couldn’t recall making the alleged comments but apologised for any offence caused. She was later dismissed.
ERA member Trish MacKinnon disagreed with the decision and said the language didn’t warrant dismissal – particularly when there were conflicting statements from two witnesses.
"While the language was robust and forcefully expressed, it is not uncommon language in the workplace,” she said, pointing out that even Gardner had admitted swearing was normal in the Porirua workplace.
“It was not directed towards Ms Talo, in whom Ms Naiker was confiding her frustration, but was an expression of anger and frustration over what seemed to Ms Naiker to have been unfair treatment," MacKinnon continued.
“It was in the context of a private conversation she was having with a fellow employee she believed, mistakenly as it eventuated, to have been a friend.”
The ERA ruled that Naiker's dismissal was unjustified and accepted that she was humiliated by it. MacKinnon ordered Pak'nSave Porirua to pay her three months' wages of $6,739 and $6,000 in compensation.
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