Employee unjustifiably dismissed after being told to quit over the phone...

The Employment Relations Authority has recently upheld an employee’s personal grievance claims of unjustified dismissal and disadvantage when they were told to quit by their employer over the phone.

In a meeting, the employer and employee agreed that the employee’s work duties would include making food and acting as cashier. The employee was also often asked to perform other duties such as stocking fridges and cleaning the workplace. 

The employee began working for the employer without an employment agreement and she was not provided with one before her work came to an end three months later.

During her employment, the employee’s hours were often changed suddenly, and sometimes with only an hour’s notice. The employee was also not given proper rest and meal breaks, apparently being told to take her breaks “whenever she was able”.

The employee requested to have a meeting with the employer to discuss the concerns she had with her job. The discussion was eventually held over the phone, with the call ending with the employee’s termination.

The Authority had to determine whether the employee had been unjustifiably dismissed or disadvantaged by the employee’s actions.

Unjustified disadvantage may occur where a person’s employment or any condition of their employment has been affected to their disadvantage, by an unjustifiable action.

In this case, the Authority decided that many of the employment relationship issues stemmed from the fact that the employee did not have a written employment agreement. Providing an employee with an employment agreement is a statutory requirement, and not providing one is unjustifiable.

The Authority decided that if the employee had had an employment agreement, her duties and her rest and meal breaks would have been clearly outlined to her. Not having an agreement caused the employee confusion and led to her eventual dismissal. The employee was therefore unjustifiably disadvantaged.

The Authority then considered whether the employee had also been unjustifiable dismissed. This requires consideration of what a fair and reasonable employer could have done in the circumstances.

The Authority considered that the phone call had taken place to discuss the employee’s concerns with her employment. When these issues were raised, the employer responded by saying that if the employee was not happy with her employment, she should leave.

Following the phone call, the employee sent a message to the employer saying, “as you told me I shouldn’t come to work from tomorrow, I will do so.” The employer did not respond and within the following hour posted a job vacancy for the employee’s position.

The Authority decided that a fair and reasonable employer could not have dismissed the employer in such a way. The employer never responded to the employee’s message, nor did they follow any formal process in dismissing the employee.

The Authority concluded that the employee was essentially “sent away” from her employment. The employer failed to prove that their actions were justified and therefore the employee had been unjustifiably dismissed.

The Authority ordered the employer to pay $7,268 in wage arrears and holiday pay, as well as $18,000 in compensation to the employee for hurt, humiliation and loss. The employer was also penalised $6,000 for their failure to comply with statutory obligations such as providing an employment agreement and proper rest and meal breaks to the employee.

It is important to be aware of your obligations as an employer, especially when dismissing an employee. If you are confused about these obligations, it pays to seek advice from a professional with experience in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Alan Knowsley and Hunter Flanagan-Connors