A Thai restaurant worker was awarded $12,500 for wrongful dismissal

A Thai restaurant owner has been ordered to pay a former staff member more than $12,000 after he used his annual leave to boost his salary during the 2020 lockdown despite being paid the Covid-19 wage subsidy.

The Workplace Relations Authority has found that the owner and sole manager of Thai Orchid restaurant in Christchurch, Julian Stokes, wrongfully dismissed his former member of reception staff after taking umbrage at unusually low payments she had started to receive.

The authority issued a plethora of payments, including $2,258.87 in seven weeks of adjusted lost wages and $5,000 for injury and humiliation to his experience.

Stokes got the government wage subsidy and despite paying his first week as he was entitled to, for the remaining seven weeks he began paying the staff member 80 per cent of the wage subsidy and supplementing it with furlough woman’s annual – although he did not have approval and later protest.

He would later tell the Authority that he used the surplus from the staff member’s grant to supplement the better paid leaders on his team.

In May 2020, following the national lockdown, Stokes told the member of staff that due to the slowdown in business due to Covid-19 he could not employ her for the same number of hours she had worked before and began a dismissal process while offering to continue to employ him. at reduced hours.

She in turn asked for more hours, however, Stokes refused and terminated her employment after more than two years at the restaurant.

After initially working just 15 hours a week, that figure eventually increased to around 36 hours after she was granted a work visa and she moved to a reception position.

When the country entered Level 4 lockdown, the woman understood she would receive 80% of her salary at her new reduced rate of 29 hours.

While Stokes paid the first 29-hour weeks, he then paid his salary for the next four weeks using annual leave entirely.

Stokes told the authority he intended for 80 per cent of the 29 hours to be paid on ordinary time and the remainder to be taken from the staff member’s leave entitlements.

However, in a staff meeting recorded by the woman when the country entered Tier 4, Stokes informs staff that the company has already applied for the wage subsidy and that if granted, they will pay the full amount. to staff.

This wage subsidy was slightly higher than his normal weekly salary.

On May 8, 2020, [she] received her weekly salary calculated at 20 hours a week instead of the 29 hours she expected to receive.

She texted and emailed Stokes asking for this and a week later was again only given 20 hours pay.

On May 16, he replied to her by e-mail referring to the “lack of economic profitability” of the company, saying that she had two options: switch to a casual contract of 20 hours minimum or end her current contract with a week’s notice at 29 hours.

The staff member sought advice and rejected offers asking him to repay monies owed and sue her at 11 p.m. to renegotiate at a later date.

Stokes responded by rejecting his compromise and terminated his employment.

For using her annual leave to subsidize her salary during the period, the authority found no contemporaneous records showing that it was communicated to her or that she understood or agreed to this happening.

“If Mr Stokes had intended to deduct 5.8 hours a week from [her] leave balance, it was his responsibility to have communicated it clearly in order to achieve [staff member’s] consent.

“During the last nine weeks of his employment, [she] should be paid at the rate of 29 hours of regular time each week, as that was agreed between her and Mr. Stokes. No other alternative agreement was ever concluded.

“An employer is unable to unilaterally alter the terms of an employment contract and Mr Stokes’ attempt to reduce [her] hours and paying without his agreement is not efficient.”

Despite the difficulties the restaurant was facing at the time, the authority deemed the dismissal of the staff member unjustified.

The authority awarded him seven weeks of lost wages at $2,258.87 in lost wages plus $180.71 in annual leave and $5,000 for injury and humiliation.

In addition to payments for short-term wages, short-term notice, and three non-working holidays, the plaintiff was awarded approximately $12,500 in total.

“The impact on [staff member] of his dismissal were real and must be acknowledged.”

The authority found that because the grant payments ran from March 26 to about June 16, Stokes had an obligation to “do his best” to keep his job until that date.

“Instead, he terminated his employment on May 22, 2020, with his notice being paid until May 29, 2020.

“It is regrettable at best that Mr Stokes has chosen not to continue [her] a job for the few days it would have taken to comply with the grant obligations.”

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