McNally started working for Deeya Investments Ltd, which trades as the Peel to Pip Café in Auckland, in April 2022 after he’d seen an advertisement in the window of the premises, dropped in and was interviewed by director Jaynisha Patel.
She offered him employment under a verbal rather than written employment agreement - which was in itself a breach of the law, the authority said.
McNally worked as a barista, serving customers and helping with the cafe’s general operation alongside Patel and her sister, who also worked there.
He said the job had been “great”, but a month later he was gone.
McNally had noticed a customer at a table with food and a drink she hadn’t paid for.
The authority noted it was a usual practice for some customers to have a tab for which they paid upon leaving the cafe, rather than paying for their order at the time it was placed.
McNally said that despite asking his co-worker to check the customer had paid before leaving, as he was busy making coffee, that didn’t happen.
When McNally pointed out what had happened, the co-worker (Patel’s sister) said something to the effect that he would “probably have his pay docked for that”.
McNally felt he’d acted appropriately and that it was unfair that he should be penalised, so sent a text message to Jaynisha Patel that evening. He explained what had happened and that he wasn’t feeling great about it.
McNally said he was astonished when Patel texted back: “We will probably just leave it here then, don’t come back in”.
Patel did not engage with the ERA but when contacted by NZME the emotional cafe owner said the person who commented about docking his pay had no authority to do so.
She said the matter had put a lot of stress on the small, family-run business.
When asked why she hadn’t responded to the authority’s several requests for a response, she said she was unable to afford a lawyer.
“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 said, audibly upset.
The authority acknowledged the business was a small employer and therefore 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 said.
She said McNally acted responsibly in informing Patel’s sister of the situation regarding the customer who had not paid when he was busy with cafe duties and unable to monitor the situation himself.
No issues had been raised about his performance in the time he was there and there was no substantive justification for McNally’s dismissal.
McNally, who has since secured a new job, told NZME that the former employer’s lack of engagement meant the matter then escalated into a legal minefield that still disadvantaged him as a low-wage worker.
“We have a broken culture in low-wage hospitality work in Auckland and this type of thing has been my general experience in cafes and bars for years - that employers expect that we won’t be able to enforce our own rights, to the point where receiving an honest run from an employer, a contract, and having them do their due diligence is almost unusual.”
He encouraged cafe and bar owners to “do right by their staff” and have empathy for those often just trying to escape underemployment in expensive times.
A spokesperson for McNally’s representative, Sacked Kiwi, said it was pleased with the outcome and had now started enforcement proceedings against Deeya Investments to secure the money owed.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.
