Employment Law
Employment Law

The Case of the Vegetables that Damaged Frost

Susan Frost claimed she was unjustifiably dismissed by her employer Cullen’s Fruit and Vege Limited, better known to Nelson locals as the Victory Fruit and Veg Shop and she was right; but her win came at a cost because the Employment Relations Authority decided that she was largely to blame, to be precise 75% to blame.

What had she done? The Authority accepted the evidence of witnesses for the employer that Susan Frost had given $30.00 worth of vegetables to a customer for 79 cents; their takings had been reduced during the shifts she worked; customers had been saying “things were cheaper when Sue is here”; and, after she believed she had been dismissed, she stood outside the shop “yelling” and telling customers not to frequent the shop.

In accepting the employer’s evidence the Authority stated that Ms Frost had been giving away produce at a very low price out of the goodness of her heart but she had no right to do so. This statement was somewhat charitable in my opinion: The Authority had evidence from Brenton Cullen who gave his evidence in a generally credible way that he heard Ms Frost say to the customer (who paid the 79 cents) that she would have to charge him something this time because the boss’ son is hanging around. Further, the decision does not indicate Ms Frost gave evidence that she was giving away produce cheaply out of the goodness of her heart. In fact, according to the Authority, she vehemently denied letting customers have produce cheaply.

What was at stake? Ms Frost was seeking about $10,000.00 in compensation plus a contribution towards her legal costs. What she won was $2,700.00 in compensation and a contribution towards her legal costs of $1750. However, she was $1,400.00 out of pocket because her actual legal costs were $5,850.00. More importantly, she may suffer the stigma that she cannot be trusted to ensure that customers pay the proper price for things they buy. In these circumstances she may well have difficulty finding work. This was always a risk for her and is a risk for other employees contemplating taking their employer to the Authority where their honesty is at stake. While they might win, their reputation and career might be badly damaged.

Why was her dismissal unjustifiable? The reason is simple. Her employer, suspecting her of misconduct, did not tell her of their suspicions and did not give her the opportunity to explain herself. The reason they did not do so was that they believed, wrongly as it turned out, that she was employed on a casual basis and they could simply stop offering her work. This is a common mistake made by employers which once made will leave the employer up the proverbial creek without a paddle. Employees like Ms Frost are permanent part-time working hours that vary from week to week.

The final interesting feature of this case is that before the Authority looked at Ms Frost’s blameworthy contribution, it concluded that the evidence in support of her humiliation and distress warranted an award of $7,000.00 which it described as moderate. In the past $7,000.00 would have been considered high and certainly not moderate. What we have been seeing is in 2012 the Authority awarding higher amounts than previously. The lesson for employers is that they should do things correctly; otherwise it could well be very expensive.

Published on Wednesday, May 21st, 2014, under Blog

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