ERA rules in builder’s favour after he was sacked for yelling at his boss

A builder who shouted at his boss and then hung up has been awarded compensation for what turned out to be unjustified dismissal. Photo / 123RF

His job with a small construction firm lasted a month before it ended with Brad Capper hanging up on his boss after a terse phone call.

“This doesn’t seem to be working for you or us, Brad. Maybe we should consider going our separate ways if this is how you feel,” the owner and director of CJS Construction, Callum Sheridan, told Capper, who went on to claim he was dismissed without warning or notice of any kind.

The employment relationship ended around August 11, 2022, having lasted barely a month, the Employment Relations Authority (ERA) said.

Now, Sheridan’s small building firm, which specialises in residential construction projects, has been ordered to pay Capper $5520 in compensation and wages.

Sheridan told NZME the result wasn’t entirely unexpected, but he would have preferred not to have to pay anything.

The owner of a building firm in Auckland has been ordered to pay a worker just over $5000 when he was sacked a month after starting work. Photo / Michael Craig

“He didn’t show up, I called him, he lost the plot. I felt completely set up by this,” Sheridan said.

Capper had been absent from work since August 1, 2022, when Sheridan phoned him on August 9 to find out what was going on as he had not reported his absence.

He had, however, told workmates he had Covid-19.

Sheridan told the authority that during the call he expressed his dissatisfaction with Capper, who then became angry and defensive.

That was when Sheridan made the comment that the employment agreement didn’t seem to be working.

He said Capper responded by yelling Sheridan could not “sack him” before abruptly hanging up.

Capper told the authority his boss called to “terminate his employment” and he was told “not to come back to work”.

In emails sent soon after, he complained he had been dismissed and raised a grievance soon after.

Sheridan’s email in response did not expressly deny Capper’s claim but “strongly criticised” his poor work habits and lack of honesty.

The ERA said in its recent decision Sheridan’s email made clear that Capper’s employment ended during or after the August 9 phone call.

Two days after the call, Capper contacted the employer and asserted he had been dismissed and invited a reply from CJS.

The authority said this was an opportunity for Sheridan to correct any misunderstanding by firmly denying there had been any dismissal. But he didn’t.

It concluded termination was therefore at the initiative of CJS.

“Silence by the employer in the face of the employee’s claim of having been dismissed could be taken as confirmation,” authority member Alastair Dumbleton said.

Because the dismissal was not justified, a personal grievance was found and therefore Capper was entitled to remedies even though he had contributed “significantly” to the situation which gave rise to it, the decision said.

While the authority declined to make an award for lost wages, it did award $4000 in compensation and $1520 in wages in lieu of notice.

While Sheridan told NZME the outcome was not what he had hoped for, he also acknowledged it could have been worse.

“I was expecting I’d have to pay a small amount - certainly smaller than what was being asked.”

Capper had sought $25,000 compensation for humiliation and injury to feelings.

At the same time, the authority declined Sheridan’s claim for $28,740 to cover the cost of correcting Capper’s alleged substandard workmanship during his few weeks on the job.

Sheridan said he found the ERA process generally pretty fair, and the member showed a lot of understanding.

He conceded he had rushed the employment process when hiring Capper.

There was a lot going on at the time, including the sudden death of a staff member, he said.

“We were incredibly busy at the time, and I just said, ‘Yes, let’s get you on board’.”

Sheridan said it served as a lesson to him, and possibly other small businesses out there trying to make a go of it.

“I’m a small business, I’m a single dad with kids to care for. I’ve run this company for 10 years, but it’s not like a company which has millions of dollars sitting in the bank to pay out to people.”

Capper was approached by NZME through his legal representative but declined to comment.