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Sacked while on maternity leave, restaurant manager wins $23k for unfair dismissal

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By Tracy Neal, Open Justice reporter of NZ Herald

Barista preparing a cappuccino

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Photo: 123RF

Pregnant restaurant manager Maryna Bolgaryna’s “big belly” was a problem for her employer, until there were no more staff members left to make coffee.

A day overdue to give birth, and several weeks after being asked to take maternity leave early, she was called in to work because the other staff were “on strike”.

Now she’s been awarded almost $23,000 in compensation and reimbursements for being sacked while on maternity leave, even after she pleaded for her job by offering to put her newborn in daycare and return to work early.

The Ukrainian-born hospitality worker has been in New Zealand for eight years and told NZME she had never been treated so poorly, not even in her own country, nor anywhere else in the world where she had travelled and worked.

“We have [employment] problems but nothing like what happened to me here.

“I feel daft coming to the best country in the world to get treated like this – this was a slap in my face.”

The Employment Relations Authority (ERA) said the dismissal and the way it was done had a devastating impact on Bolgaryna – a young mother who at the time was still on maternity leave caring for her 3-month-old child in Gisborne, where she lived with her husband.

ERA member Andrew Gane said Bolgaryna and her husband gave compelling evidence of the profound effect of the job loss, especially on Bolgaryna, who had sought security in both her employment and immigration status from Aroha Management Ltd.

She had worked for the business, trading as the Gizzy Aroha Function Restaurant and Bar, since 2018 and continued there after the business changed hands, under the directorship of Simon Ong.

The change in ownership meant Bolgaryna had to apply for a new immigration visa in July 2019, as her previous visa was tied to the previous restaurant owner.

Gane said she was emotionally distressed by the job loss, and the family had been instantly reduced to one income at a time when they had the increased cost and responsibility of raising a young child.

Bolgaryna also lost her ability to work, as her work visa was tied to the company.

The company did not engage in the ERA process, and Ong has so far failed to respond to NZME’s request for comment.

When the business changed hands the purchase included all the bookings for events until the end of 2019.

Bolgaryna was the only person in the restaurant who knew how to manage the booking system and helped Ong with its administration.

She was also asked to design new menus and flyers for the restaurant, which she was happy to do, thinking it was an opportunity to show Ong how capable she was.

Bolgaryna had arranged to go on maternity leave at the end of September 2019, a month after her new visa arrived, but Ong then asked her to start maternity leave early, as he did not want her to work with “a big belly”.

While on leave she agreed to Ong’s requests to do some jobs for him from home but pointed out that she could do only 52 hours all up within the period of her paid parental leave and not for the first 28 days after she gave birth.

On 14 October 2019 Ong’s wife asked Bolgaryna if she could come into the restaurant and make coffee for customers, as other restaurant employees had “gone on strike, and no one had shown up at work”.

She was one day overdue to give birth. Bolgaryna asked her parents-in-law to drive her to work as she wanted to support the business.

Her parental leave was due to finish on 6 February 2020 but at the end of January that year Ong told Bolgaryna he had found a new manager.

She told him she wanted to keep her role as restaurant manager and asked whether she could extend her maternity leave for another eight weeks, as she wanted to keep breastfeeding her three-month-old child.

Bolgaryna was instead called to a meeting at the restaurant on 3 February 2020, when she was told her job had ended and the company would no longer support her visa applications.

She tried to negotiate with Ong by saying she would return to work immediately as she had organised daycare, but Ong refused to accept any of her proposals.

Two hours after she left the meeting Bolgaryna received an email from the company’s operational manager telling her it would not be extending her parental leave and that she no longer had a role at the business.

As a result of the dismissal, she had to apply for a new work visa. On 17 April 2020, Bolgaryna raised a personal grievance.

The ERA found she was summarily dismissed by email, and that the dismissal was unjustified because it had been carried out in a fundamentally unfair way.

Bolgaryna was awarded $15,000 for hurt and humiliation, plus $3000 in wage arrears and $3750 in salary reimbursement.

She was also awarded $913 compensation for what it cost to get a new work visa.

Bolgaryna said so far she had not received any money, but she has a new job she loves and she has been able to put what happened behind her.

“We are now back on our feet.”

– This story first appeared on NZ Herald

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