Orchard worker wins $5395 compo after being sacked for taking Labour Day off

An orchard worker was sacked by text message for taking Labour Day off. Photo / file

An orchard worker sacked by text message for taking Labour Day off has been awarded $5395 for lost wages, court costs and compensation.

The Employment Relations Authority (ERA) found that Trevor Hughes was unjustifiably dismissed by Primogrow Ltd, a contracting business that provides mowing, spraying and fertilising services to horticultural businesses throughout the Bay of Plenty.

Hughes undertook numerous roles for the company for about a year from October 2015. October and November were the busiest time of year for the company and Hughes generally worked 40 hours or more a week, the ERA's decision said.

He didn't have a written employment agreement and there was little discussion about the type of employment he was engaged in, although he received 8 per cent holiday pay.

ERA member Tania Tetitaha determined he was a casual employee.

When he was at work on October 22, 2016, he had a conversation with the company's operation's manager, John Henry Brunston, advising he needed to take the weekend off.

Brunston's evidence was that the conversation was "short and rather vague".

On October 24 -- Labour Day -- Brunston remained of the belief that Hughes was coming into work, the decision said.

"You coming in or what," Brunston said in a text message.

"Na m8 fat out on drag car with a m8 txt me 2 moro if I still have a job [sic]?" Hughes replied.

In response, Brunston said: "Hey sorry bro we won't be needing you back again. Unfortunately we needed more commitment especially now the pressure has increased dramatically. Thanks for all the help you've given us though."

Tetitaha found the company had not raised any concerns, carried out an investigation or given Hughes any opportunity to be heard prior to his dismissal. This is required by law and he was therefore found to have been unjustifiably dismissed.

Hughes had sought lost remuneration of three months of $12,870 and compensation for hurt and humiliation of $10,000.

However, the ERA member was of the view that he could not have expected to have had ongoing work after November which, by Hughes own acknowledgement, was a very slow season.

While Tetitaha accepted Hughes' submission that some personal grievances could cause significant hurt and humiliation, no such evidence was presented in this case.

"Mr Hughes strikes me as a stoic man who gets on with his life and does not dwell on the past. He had no evidence of significant [if any] hurt or humiliation from this," she said.

Hughes had made himself available to work exclusively for Primogrow during this busy period; something that was underlined by Brunston's text berating his lack of commitment.

"This showed Primogrow expected Mr Hughes would turn up each day, including a public holiday [Labour Day], for work."

Tetitaha further formed the view that "the grievance was caused by Mr Hughes' refusal to work".

"He knew this was upsetting to Mr Brunston. He knew his job may be at risk as a result. This was shown in his reply text message."

She reduced the award by 50 per cent for Hughes' "blameworthy" behaviour.

Hughes was awarded $2145 lost wages, $1000 for hurt and humiliation and $2250 towards his legal costs.