Stephens initially offered her a two-week notice period but cut that down to just a couple of days when she requested the four-week notice period promised in her employment agreement.
Steam ‘N Dry’s failures in the process ended with Larmer awarding Mortimer more than $30,000, which included a $10,000 fee for distress compensation.
“It is quite bad, actually. When it crossed my desk I was a little bit shocked,” Anderson told the Herald.
“I came on board pretty much when she first got dismissed.”
Mortimer had engaged another advocate who told her there was not much to be done because she was on a trial period, but when Anderson got involved he realised the trial period was invalid.
“There was a trial period, but it was ambiguous,” he said.
The wording stating the length of the trial period was inconsistent and the contract did not state Mortimer could not take a personal grievance against the company if she were dismissed within the trial period.
“I don’t usually go to the authority unless it’s a very good case and high potential of resolving it,” Anderson said.
Sometimes he had to take cases to the ERA when “the employer’s not willing to play ball”.
This one was straightforward, given the trial period was not written correctly into the agreement, and also because Stephens unilaterally cut Mortimer’s notice period, in breach of the agreement.
“It serves as a warning to small businesses or employers in general that they must act reasonably, provide proper guidance,” he said.
Mortimer was “doing good” now and was happy the ruling was made in her favour, although was aware the company had until mid-January to appeal the decision.
Auckland Steam ‘N Dry breached good faith in dismissal process
The ERA decision laid out how Mortimer was able to win the case against the company, with the ruling breaking down the steps taken to dismiss her.
On August 16, after 15 days on the job, Graeme Stephens emailed Mortimer a letter that stated it “did not make sense to continue with the remainder of the three-month trial” and “I can offer you two weeks’ working notice in fairness if you like?”
The dismissal letter referred to discussions regarding performance issues, citing issues with customer communication, professionalism and grammar, as well as “the financial income hardship the company is experiencing”.
Mortimer told the ERA there had been no such discussions and she did not know what the letter was referring to. She said her requests to Stephens to be given more time to prove herself were declined.
When she pointed to her employment agreement and requested the four-week notice period she was entitled to, Stephens reduced the offer to one week. He then emailed her on August 19, just one working day later, informing her that would be her last day of work.
No evidence was provided to show she was paid for any of her notice period, and Mortimer had to apply for more than 60 jobs before she was able to secure contract cleaning work months later.
Auckland Steam ’N Dry did not engage with the ERA process beyond lodging an initial statement in reply, in which it stated Mortimer was dismissed because she was unsuitable for the role, and claiming she could not pursue a grievance because she was fired under the trial period provision in her employment agreement.
The Employment Relations Authority awarded Shania Mortimer more than $30,000.
The ERA noted multiple failings by the company, including discrepancies between Mortimer’s payslips and the earnings reported to the IRD, no record of KiwiSaver contributions, holiday pay, or pay for her notice period, and a failure to provide Mortimer with requested employment documentation.
Larmer said the company gave Mortimer no opportunity to respond to the decision-making around her dismissal, and that it breached its duties of good faith and minimum procedural fairness.
“A fair and reasonable employer is expected to train and support a non-performing employee to the required performance standards before dismissing them, particularly if the employee had only been employed for 15 days.
“The respondent failed to provide any induction or training to Ms Mortimer, despite knowing it was her first office-based job. She was not given any feedback, constructive criticism or guidance to support her to meet the requirements of her new job.”
The company attached a text message to its statement in reply suggesting Mortimer was taking too long to train, despite the fact no training was provided and no plan put in place to address such a concern.
The ERA also found there was not a valid trial period provision in Mortimer’s employment agreement, meaning she was actually a permanent full-time employee.
Larmer awarded Mortimer $30,087.30 in costs, which included wage arrears, interest, lost remuneration, KiwiSaver contributions, holiday pay, legal costs and a $10,000 fee for distress compensation.
If the company did not pay the full amount within 28 days of the decision, Stephens was ordered to pay the amount personally.
Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 12 years.