A hotel worker who agreed to be paid in part with pots of Nutella and a ride-on mower has been awarded more than $26,000 for what amounted to a “retaliatory and arbitrary” dismissal.
Tracy Tahuhu joined the Springfield Hotel in Canterbury as a cleaner in 2020, and became the front-of-house manager in the hotel bar the following year.
She said that while there was both good fellowship and mirth at the pub, that was not always the case for her.
The part-time cleaning job served as a re-entry to the workforce after some time away due to a personal injury, the Employment Relations Authority (ERA) said in a decision released this week.
It also noted she was no stranger to the hotel because her husband Ernie was a regular patron there and that some of her wages would be used to pay down her husband’s bar tab.
This barter-styled arrangement was agreed to by Tahuhu, which also saw her wages offset with large pots of Nutella and a ride-on mower.
Things turned sour earlier this year when Tahuhu raised a personal grievance against the hotel’s owner Blair Wallace over his alleged conduct toward her, including what she claimed were multiple occasions when he verbally abused her.
The personal grievance was emailed to Wallace in January this year by Tahuhu’s advocate Maryline Suchley and included a reference to a staff meeting a year earlier at which Tahuhu was said to have been left feeling inadequate and humiliated.
The ERA said Wallace’s partner Shelley Watson had allegedly made the comment in front of other staff that Tahuhu could no longer work on Friday nights because she was “not young enough” and that she did not have “big enough boobs”.
On the same day Tahuhu raised her grievance, Watson sent a text asking her to return the keys to the hotel because she was “deemed a security risk”.
Suchley also received an email from Watson who threatened to lodge a fraud complaint against Tahuhu with ACC.
Tahuhu then discovered she could no longer access the online payroll system and that her final pay had already been calculated, leaving her to surmise she had been dismissed by the hotel without notice.
Wallace told NZME he believed the personal grievance was lodged prior to the start of scheduled coaching and counselling in relation to what he described as Tahuhu’s rapidly deteriorating job performance.
“We were concerned over her emotional and mental state. Myself, my partner, mother and several members of the team received an overwhelming amount of information about the challenges she was facing in her personal life, which had begun to seriously affect our business.”
Wallace says they had enjoyed a good relationship with Tahuhu, and at no point did she raise concerns about mistreatment with anyone in the business.
However, the ERA noted the employer’s lack of engagement in the proceedings, despite efforts to ensure a fair process.
ERA member Peter Fuiava said in his decision that copies of documents which had been emailed to the employer were then delivered to the hotel’s registered office address.
In addition, a reminder of the date of the investigation meeting was emailed to the employer, and the start was delayed to allow time for him to show up.
Wallace said they initially engaged with the process, but due to business challenges, and extremely limited staffing resources because of ill health, they were not able to attend the hearing on the day.
He said they were not given any opportunity to address or respond to any of the allegations prior to Tahuhu going to MBIE and using services to lodge an extensive personal grievance.
The ERA said based on the information and evidence provided by Tahuhu and her witnesses, it was satisfied that she was unjustifiably disadvantaged as a result of what it described as verbal abuse and intimidating behaviour by Wallace.
The ERA said it was clear Tahuhu had underlying trauma which predated her employment at the hotel, but it was satisfied that Wallace knew she had increased vulnerability to personal criticism and that she was not coping with his outbursts.
Aggravating the effects was the implied threat to report her to ACC for fraud, which the ERA said was a baseless claim, but one designed to have an impact on Tahuhu’s mental health.
Fuiava said the harm suffered was in the moderate to high range of the spectrum and awarded $18,000 in compensation for humiliation, loss of dignity and injury to feelings for unjustified disadvantage and unjustified dismissal.
He was unable to progress matters around whether Tahuhu had been disadvantaged as a result of sexual discrimination, because it related to an event that took place in January 2021, and was therefore outside the 90-day period for raising a grievance.
Fuiava said the timing of the dismissal struck him as both retaliatory and arbitrary but more importantly, it was unjustified and done without proper regard to a fair process.
He found that Tahuhu was unjustifiably dismissed and was therefore entitled to remedies.
She was also awarded $2734 in wage arrears and holiday pay plus interest on that amount from January this year; lost wages of $1800 and costs of $3500.
Tahuhu told NZME the authority’s decision is a validation of the “terrible experience” she endured at her workplace, and that the experience has impacted both herself and her family, to whom she is grateful for their support, and likewise with her friends.
“No employer should be able to treat their employees so badly; this is why ERA exists to help people who have nowhere else to go.
“I’m thankful for the representation I received to enable me to take on Mr Wallace,” Tahuhu said.
Wallace says the process has essentially been a “character assassination” based on hearsay, and he’s now getting legal advice regarding his options to appeal against the decision.
* This story originally appeared in the New Zealand Herald.
Story Credit: rnz.co.nz