The authority member presiding over the case ruled that her employer had made "deliberate" moves to create an illusion that she was a casual worker, finding that the business operators had failed to fully investigate her illness and follow proper dismissal procedures.
The Employment Relations Authority
(ERA) awarded Karena Spencer $3581 in compensation and lost wages after authority member Paul Stapp ruled that her dismissal was unjustifiable.
Barry Jones employed Spencer at the Ashhurst Service Centre in February 2014 so that he could focus on other areas of business.
An employment agreement was never signed, with Spencer’s employment being verbally agreed upon. The pair agreed that she would cover his hours casually until a self-pay system was implemented at the service station.
Soon after starting work, Spencer fell pregnant with her third child and became unwell. She had a history of suffering with illness during her previous pregnancies, but worked through her sickness.
The judge did not align Spencer's pregnancy with her dismissal, and the Joneses were not accused of pregnancy discrimination.
However, Jones and his wife allegedly began receiving complaints from customers about Spencer being unable to cope with her work.
The couple became concerned with the health and safety implications imposed by Spencer’s illness, and eventually barred her from working. They argued that there was no employment arrangement as Spencer was a casual worker, and that there was never an agreement on how long she would work there.
However, Stapp found that there was an employment relationship as it was agreed that Spencer’s employment would continue until the time when a self-pay system was installed.
“The record shows that there were regular hours worked by Ms Spencer,” Stapp said in his decision. “The Joneses’ claim is entirely misconceived.”
He added that the absence of an employment agreement was a “deliberate” move by Jones.
“I hold that his action was for his own convenience and the result was to minimise the risk of Ms Spencer becoming aware of her rights as an employee because nothing was in writing,” Stapp said. “The failure to retain an individual employment agreement is a breach of the Employment Relations Act.”
He found that although the Joneses were genuinely concerned about their health and safety obligations, Spencer’s illness was insufficiently investigated, which amounted to their failure to comply with proper procedure.
Spencer was not provided with the complete information about customer complaints or given an opportunity to respond to them. The Joneses also failed to provide Spencer with an opportunity to seek advice before her dismissal, and never asked for her medical records or details.
Stapp found that these failures were “not minor” and “resulted in Spencer being treated unfairly”.
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