The owner of a Wellington café has been ordered to pay more than $18,000 after dismissing an employee for taking annual leave, despite reportedly approving the holiday.
Victoria Clapham, who had worked at the Groundup Café in Pauatahanui since July 2016, claimed that owner Darryl Ellis had verbally approved her request for three weeks of annual leave between August and September 2017. However, upon her return, she had been suspended without reason. An ongoing text conversation resulted in Ellis “accepting [Clapham’s] resignation,” despite no offer of resignation having been made, and oral evidence submitted to the Employment Relations Authority found that Ellis had “wanted her out of the workplace.”
The ERA found that Ellis had failed to provide a reason for the initial suspension, and that he did not act as a fair and reasonable employer. Ellis now owes Clapham $12,000 in humiliation, $4222 in lost wages during her suspension, and about $2200 in legal costs.
Sue Garmonsway, a director at law firm Gallie Miles and part of the Dispute Resolution and Employment team, said that documentation is key for businesses if they want to avoid a similar situation occurring in their workplace.
“The best way is for employers to follow strict process, and demonstrate clear compliance,” she said. “We often see issues where there is a lack of clear policy.”
When investigating cases such as Groundup, where it is one word against another, the ERA takes into account all possible evidence. Employment agreements are looked at to see if a clear leave-approval process is explained – if not, the ERA will talk to other employees within the business to see how leave requests are usually granted. Contemporaneous diary notes, meeting minutes and other correspondence will all be considered in the final decision.
Although text messaging is favoured among hospitality workers as a quick and easy form of communication, Garmonsway warned that the speed with which conversations are conducted via text can potentially lead to confusion and misinterpretation from both sides. In the case of Groundup, Ellis claimed that Clapham had resigned, which Clapham later denied.
“We often recommend including a cool-down period,” Garmonsway said. “Because text messaging is so quick employees can act in the heat of the moment, so there should be some leeway granted in those cases.”
Employees can often book flights and accommodation before lodging a leave request which puts the employer in a difficult position, Garmonsway said.
“Employers should make it clear that leave must be granted before any planning takes place.”
