An Auckland restuarant has been ordered to pay a former employee $19,000 after wrongfully dismissing her. Photo / NZME
An Auckland restuarant has been ordered to pay a former employee $19,000 after wrongfully dismissing her. Photo / NZME
An Auckland restaurant that failed to pay an international student's full wages has been ordered to pay over $20,000, after the student was verbally abused and sacked when she raised concerns.
Penrose's Big Fish Eatery, owned by Good Food Vibes Limited, was ordered to pay $19,000 in compensation and nearly $2000 in lost wages by the Employment Relations Authority last week, after unjustifiably dismissing the employee.
The authority's decision came after a complaint from former employee Alexis Dietz, who was employed by the company in August 2019.
Dietz was employed on a casual basis and had been working for the company for around six months when the country was placed into lockdown in March 2020.
The company applied for the wage subsidy to cover Dietz's salary during the lockdown period, determining the size of the subsidy based on the average hours worked in the weeks leading up to the lockdown.
Once restrictions were eased, Dietz returned to work on June 15, while she was still being paid the wage subsidy.
During the fortnight between June 15 and June 28, Dietz worked a number of hours, but was only paid by the employer for two and a half hours worth of work.
The authority said that it appeared the company believed the wage subsidy would cover the remaining hours worked by Dietz.
The company could not provide timesheets proving the period that Dietz worked, providing the authority with just four weeks' worth of rosters throughout Dietz's entire employment period.
Believing that she had been underpaid, the employee contacted the restaurant manager querying that fortnight's pay packet on July 1. The manager said she would meet with Dietz the following day.
An emergency medical appointment meant the manager could no longer meet with Dietz, and the restaurant owner William Chung would instead ring Dietz to discuss her concerns the next day.
When Chung rang to talk with the employee, Dietz's husband picked up the phone from the restaurant carpark, while his wife continued to work inside. The husband raised his wife's concerns, and the discussion became heated.
William Chung, owner of Auckland's Big Fish Eatery, was found to have targeted an employee with an "angry diatribe" in the hours after sacking her. Photo / NZME
Chung then immediately returned to the restaurant in person, pulled Dietz aside, and informed her that he would be terminating her employment, after a two-week notice period.
Dietz continued working her shift that day, covertly recording audio of Chung throughout the afternoon as he continued to speak to her from within the kitchen.
The authority said the recording demonstrated an "angry diatribe" from Chung, where he accused Dietz of being a scammer, made accusations against Dietz as a "foreigner" and a "migrant" and threatened to ring immigration services and report her.
Dietz later filed a personal grievance claim with the Employment Relations Authority, claiming an unjustified disadvantage and unjustified dismissal.
Employee permanent, not casual - authority
In determining the circumstances of the employment relationship, the authority found that regardless of the fact Dietz was employed under a casual contract, the circumstances of the employment meant that Dietz could be considered a permanent employee - meaning her immediate sacking was unlawful.
The authority said that with Dietz typically working 20-hour weeks since the beginning of her employment, mixed with the fact she wasn't aware of her legal right to decline work when employed on a casual basis, Dietz was, in practice, a permanent employee.
That conclusion was also aided by the existence of a "notice period" provision within Dietz's written contract - a clause not typical of a casual agreement.
Speaking to the authority, Chung admitted that he had given Dietz two weeks verbal notice when terminating her employment, but refused to provide that notice in writing at the time, telling the authority he feared "a legal trap".
Chung said the main reason for the dismissal was a prior conversation with Dietz, where she requested a promotion to a managerial position, to assist her in gaining residency.
According to the authority, the deal proposed was that if Chung would make Dietz a manager, in return her husband, who did not at this point have a visa that would allow him to work in New Zealand, could "volunteer" to do some of the delivery driving for the restaurant as a thank-you.
Chung told the authority that this previous conversation sounded "dodgy", but never raised concerns with Dietz about the proposal.
In her grievance claim, Dietz also alleged that the verbal abuse from her former employer constituted workplace bullying and warranted the imposition of a penalty.
However, the authority disagreed with this claim, saying that while the behaviour was unacceptable, Chung was under significant pressure that day, such as having five teeth removed that very morning.
But the verbal abuse suffered by Deitz did warrant a claim of unjustified disadvantage, the authority found.
"[Deitz] was humiliated and distressed by the unwarranted accusations and remarks which were being flung at her in a situation in which co-workers, and perhaps customers, were able to hear what was being said," the authority said in its decision.
In its findings, the authority said that the unjustified dismissal of Dietz warranted an order of lost wages - a sum of $1,939 - for the period the student was out of work.
The authority also ordered an additional $5000 in compensation for unjustified disadvantage, stemming from Chung's verbal diatribe.
The most substantial order - compensation of $14,000 - was awarded for the unjustified dismisall of Deitz, which the authority determined was unlawful.
