Employment Court says Text message dismissal unjustified

Employment Court says Text message dismissal unjustified

salad bowlThe Employment Court at Nelson has upheld an Employment Relations Authority decision finding a salad bar worker was unjustifiably dismissed when she was sacked by text message after being accused of stealing on her second day on the job.

Chief Employment Court Judge Graeme Colgan upheld the ERA decision awarded Amberleigh Howe-Thornley more than $6000 in compensation.

The ERA was told Ms Howe-Thornley applied for a job at Salad Bowl in Nelson after the company advertised for someone to operate a new mobile salad cart it was planning to open last August.

She was asked to come in to Salad Bowl’s existing store a few days later.

At the end of her second day, company owner Randi Westphal found the till was $52.36 short – a larger variance than she had ever found before.

She concluded Ms Howe-Thornley had taken a $50 note which had been in the till earlier, and sent her a text message saying: “Hi Amber, no need to come into Salad Bowl tomorrow. We’ll be in touch. Thx, Randi.”

Ms Howe-Thornley thought little of the text because the new salad cart was not due to open until the following week. But when she texted on opening day to ask what was happening, Ms Westphal responded: “Nothing. Please return T-shirt and feel free to get another job.”

Ms Howe-Thornley asked if she would be getting paid for her two days of work, but received the response: “Money missing from till is reason you don’t have a job!”

When Ms Howe-Thornley protested she had “absolutely no idea” what she was talking about, Ms Westphal responded: “Goodbye.”

Before the ERA, Ms Westphal denied ever offering Ms Howe-Thornley a job, saying she had asked her only to come in for a three-hour trial to see if she was suitable.

But the authority found Ms Howe-Thornley was an employee because she had been preparing salads and serving customers.

It noted Ms Westphal’s own evidence that she would have paid Ms Howe-Thornley for her work until she found the money missing.

The authority also found there was no evidence to support the allegation of theft, and the decision to dismiss Ms Howe-Thornley was unjustified.

Judge Colgan upheld the ERA’s original compensation sum of $6282 and ruled Ms Howe-Thornley was entitled to legal representation costs.

Despite the short duration of Ms Howe-Thornley’s employment at the Salad Bowl, the compensation figure of $5000 for distress and humiliation was justified, he said.

The remaining amount was for unpaid wages and compensation for lost wages for the six-week period it took Ms Howe-Thornley to find another job.

“Being stigmatised as a thief from one’s employer, and particularly in the absence of both an opportunity to refute that allegation and of the sort of evidence supporting it that would now be expected, was particularly damaging to Ms Howe-Thornley.

“Nothing seen or heard by me would persuade me that the authority’s award of $5000 was so excessive that I would be prepared to interfere with it.”

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