A kitchen hand fired when she complained about being underpaid after being employed for less than two months has been awarded almost $20,000 compensation. Photo / 123rf
A kitchen hand fired when she complained about being underpaid after being employed for less than two months has been awarded almost $20,000 compensation. Photo / 123rf
A kitchen hand at an Auckland bakery employed for less than two months was fired without notice after raising concerns about being regularly underpaid and not receiving payslips.
Tepora Taifau began working for Osothary Lim, the sole director of Spring 2017 Ltd, at the East Tamaki business in Auckland, in February 2022.
Taifau believed she would be paid $20.50 an hour for a minimum of 35 hours per week, with the ability to work more hours if required.
But she says problems surfaced immediately with her having to repeatedly request a written employment agreement - and when it was provided, it had someone else’s name on it and was attached to a job description for an accountant.
Despite the glaring faults, the contract was signed. However, when Taifau raised concerns about being underpaid, not receiving payslips and then challenged the accuracy of ones she was shown on a mobile phone, she was sacked in April.
Taifau took her case to the Employment Relations Authority (ERA), seeking compensation for unjustified dismissal, wage arrears and unpaid notice, and wanted a penalty imposed for the company’s breach of the Minimum Wage Act.
The company denied the claims, alleging Taifau had been summarily dismissed for serious misconduct after receiving multiple warnings including for poor performance, drug use, not providing documentation for sick leave, poor food quality and a verbal confrontation.
However, not all of those allegations were raised in her dismissal letter at the time - and no proof was provided to the ERA to support them during the hearing.
Lim and her sister Chanthavy, who helps at the bakery, also stated they could not continue working with Taifau.
A two-day investigation meeting was held in Auckland in April 2023, with both parties providing some supporting documents.
Authority member Rachel Larmer, in a decision released on July 26, ruled in Taifau’s favour, awarding her a total of $19,137 - $15,000 compensation for the humiliation, loss of dignity and injury to feelings due to her unfair dismissal, $3260 for unpaid notice and $876 in wage arrears.
Larmer said the company had been given time after the meeting to provide other relevant documents but failed to do so.
The ERA ruled the kitchen hand was unjustifiably dismissed and her employer failed to follow a fair and proper process or to comply with minimum good faith obligations. Photo / 123rf
Specific information not received included records about food safety complaints, issues relating to poorly-cooked chicken, additional written warnings issued but not provided, as well as a copy of the correct job description for the kitchen hand.
Taifau’s wage and time records were also requested but not received.
Taifau said she began work on February 10, but the date was disputed by the company, which claimed it was February 16, despite a diary note recording she had worked 2.5 hours on February 12.
“There were obvious contradictions in the evidence given to the authority,” Larmer said in the ruling.
While Taifau provided her employment agreement, Larmer said company witnesses again gave conflicting evidence and couldn’t agree when it was signed nor produce a copy because it had been lost.
Lim claimed she gave Taifau a number of verbal or text message warnings regarding poor performance and phone usage at work, while her sister Chanthavy stated she had given her more than 20 verbal warnings - but neither woman could provide any documented proof.
Taifau admitted she was once asked about smelling of cannabis, which she explained was because she was wearing her brother’s jacket, but denied other allegations were made during her employment.
The credibility of testimony given about Taifau “screaming and shouting” at Lim outside the bakery in March was also questioned by Larmer as it wasn’t mentioned in witness statements.
“So it was evidence that developed when these witnesses were questioned during the investigation meeting.”
Lim, Chanthavy and her husband all told the authority the decision to dismiss Taifau was made that day but Larmer noted it wasn’t specifically mentioned in the dismissal letter given to her on April 7.
Larmer said there were a number of material conflicts between the parties, including the unpaid trial period.
“She was in dire financial straits, to the point where she could not afford to pay for petrol to get to work.
“It was therefore highly unlikely that she would have agreed to work for free.”
Considerable confusion and conflict existed in the evidence about what warnings had been issued, including the nature of the warning, the conduct involved, who issued it and when, so it could not be relied on to justify Taifau’s dismissal, Larmer ruled.
While Lim and her sister testified they were dissatisfied with Taifau’s performance, particularly regarding the undercooking or overcooking of chicken, they couldn’t produce records about the concerns or events.
Taifau’s dismissal letter didn’t accurately reflect or record the real reasons for her dismissal, according to the company’s witnesses, as well as failing to detail the decision had been made in March.
“These were serious breaches of good faith and procedural fairness,” Larmer said.
Other alleged misconduct, including drug use, the disputed screaming/shouting/aggression, and claims the sisters were scared of Taifau and did not want to work alone with her, didn’t reach the required standard of proof.
Larmer said the company failed its obligations to provide Taifau with access to any information, much less all relevant information or give her an opportunity to comment before she was dismissed.
“The respondent’s failure to meet any of its good faith obligations regarding the warnings it claimed to have issued and regarding its decision to dismiss Ms Taifau fundamentally undermined its ability to justify her dismissal.”
She said the authority believed it was not necessary to impose a penalty in order to punish or deter the respondent for its breach of the Minimum Wage Act.
Leighton Keith joined NZME as an Open Justice reporter based in Whanganui in 2022. He’s been a journalist for 20 years covering a variety of topics and rounds.
