In a recently released decision, ERA authority member Alyn Higgins ruled Brutalitees Ltd (BL), which owns Brutal Ink in New Plymouth, did not act as a fair employer when it fired Whitham without prior explanation.
Dawson is the primary shareholder of the company.
Unpaid for several weeks
Whitham became aware of the opportunity to work at Brutal Ink through a post by Dawson on the Brutal Ink Facebook page in May 2024.
She was told no qualifications were required for the role, but it would be unpaid until she was trained.
She began work, doing piercings, on May 22 with no formal employment agreement.
She started being paid by bank transfer at the end of June 2024.
Before that, she told the authority, she may have received cash payments but did not have any record of them.
She continued to work, despite saying she was not fully trained to perform piercings and did not feel as if her training had been professional.
Brutal Ink offers tattooing and piercings. Photo / 123rf
She also had other responsibilities, including preparing and wrapping tools used for piercings, mopping, organising the piercing area, serving customers and selling other items in the shop.
On July 10, 2024, she was sent a contractor agreement by Dawson, but had no clear idea when she would be paid. Pay was calculated based on a percentage of the piercings performed.
Whitham said she would calculate the amount herself by reviewing the piercings completed and deducting 30%. She would message Dawson and ask her to transfer the amount to her bank account.
By about September 2024, she noticed she had not been paid for several weeks of work. She asked if she could at least receive a small amount of cash and have the rest paid later.
She said she began to be accused of not doing tasks and said the work environment became really uncomfortable.
During her time at the shop, there were no formal meetings about her performance or behaviour, and no warnings were ever issued.
She ended up complaining to another colleague, referred to in the decision as Josh, about what was happening, including not being paid.
Josh is a minority shareholder in the company.
On September 18, 2024, he told Whitham that he and Dawson would have a meeting with her the next day. She was not given any further details.
Meeting was to fire Whitham
During the meeting, after some discussion about Whitham’s tasks in the business and her allegedly unsatisfactory performance, Dawson told her she was not getting paid and was not welcome back.
The meeting then became aggressive, with Dawson telling Whitham she wanted to “smash her”, that she was “disgusting” and a “c*** of a person with a s*** attitude”. The meeting ended with Dawson telling Whitham to “take her s*** and f*** off”.
Whitham recorded the interaction and submitted it as evidence to the authority.
She told the authority that the dismissal had a significant impact on her mental health and she had become anxious and distressed about encountering Dawson in public.
She had since moved house twice as Dawson and Josh knew where she lived, and she became fearful that Dawson would turn up at her house.
Firing was ‘substantively unjustified’
The authority was satisfied that an employment relationship existed and that Whitham was an employee, not an independent contractor. She was fully integrated into the business operations and performed tasks essential to the shop’s daily function.
In its submission, the company said the decision to end Whitham’s employment was based on repeated breaches of trust, failure to follow hygiene and safety protocols, misuse of business resources and behaviour that placed the business, its clients and its reputation at risk.
But the authority ruled that Whitham was never told about these issues until the moment she was fired.
“The concerns were raised and the outcome, Ms Whitham’s dismissal, all took place in the same meeting. These are not the actions of a fair and reasonable employer,” Higgins said.
“Her dismissal was both procedurally and substantively unjustified.”
Brutal Ink did not respond when approached for comment. Whitham told NZME she could not comment at this time.
BL was ordered to pay $15,000 in compensation, more than $7000 in unpaid wages and holiday pay, more than $7500 in lost wages and a penalty of $750.
It’s not the first time Brutal Ink has struggled with the law.
In 2023, employee Peter John Roberts, known in the industry as Shakey Pete, was found guilty of one charge of sexual violation by unlawful sexual connection and six of indecent assault after he sexually assaulted two female clients.
Between January and the end of July 2020, in New Plymouth, Roberts repeatedly groped and fondled two women’s bottoms while tattooing them at Brutal Ink. He also touched the genitals of one victim over her underwear.
Brianna McIlraith is a Queenstown-based reporter for Open Justice covering courts in the lower South Island. She has been a journalist since 2018 and has had a strong interest in business and financial journalism.