Rotorua waiter wins compensation after unjustifiable dismissal

Photo/File

A Rotorua waiter fired after an altercation with his boss has been awarded compensation, when the Employment Relations Authority found he was unjustifiably dismissed.

However the authority cut the compensation in half, saying Avinash Jhorad's conduct - for which he had received previous verbal warnings - had contributed to his dismissal from Cafe Ephesus. The authority's original decision was released in March, with the costs order made this month.

The authority ordered Cafe Ephesus to pay compensation of $2500, after the 50 per cent reduction due to Mr Jhorad's contributory conduct.

It was also ordered to pay Mr Jhorad salary arrears of $3274 and annual leave owed of $10,111.73. The parties were ordered to reach agreement on money owed for public holidays.

Cafe Ephesus was also ordered to pay $4500 to Mr Jhorad as a contribution to his legal costs.

According to the authority, on July 8, 2016, Mr Jhorad asked for time off to see a specialist in Tauranga on a Saturday, a usual work day.

Cafe Ephesus director Nayazi Gunaydin did not believe his waiter had this appointment and the pair argued. Eventually, Mr Gunaydin agreed to give Mr Jhorad two weeks leave from the Saturday.

At the end of his shift, Mr Jhorad got a takeout and returned to the Eat Streat cafe to eat the meal, drinking a glass of whiskey from the cafe.

There was an altercation between the two, which Mr Jhorad believed was about his alleged non-payment for the whiskey but Mr Gunaydin said was about Mr Jhorad's behaviour towards his manager and himself.

Mr Jhorad was asked to leave but would not. Mr Gunaydin threatened to call the police. Instead of leaving, Mr Jhorad remained, finishing his drink before leaving.

"In my view, this altercation could have been misconduct ... An employer would have had a good reason to start a disciplinary process," authority member TG Tetitaha stated in his determination.

Instead, when Mr Jhorad returned on July 14 to pick up his pay cheque, he was handed a dismissal letter giving him two weeks' notice due to "disrespectful behaviour".

The authority found the manner of the dismissal did not meet the requirements of the Employment Relations Act 2000 in that Mr Gunaydin did not follow a fair and reasonable process. Mr Jhorad was therefore unjustifiably dismissed.

Mr Jhorad also sought lost remuneration up until the date of the hearing. However the authority found Mr Jhorad did not have a work visa so could not have lost remuneration because he didn't have a right to work in New Zealand. Even if he did, there was no evidence he was searching for jobs.

Mr Jhorad sought $10,000 compensation for hurt and humiliation, saying he was stuck at home which he found depressing and mentally difficult.

The authority stated the evidence would normally warrant compensation of $5000 but halved that because Mr Jhorad's conduct was "blameworthy".

It found there had been previous verbal warnings about his behaviour and misuse of the cafe premises to fund a private party, and eating leftover food from the cafe.