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Law applies despite use of electronic media

4 February 2014

The first employment matters of the year have already started rolling in. Two stories readers may be interested in relate to a couple of well-known businesses in Wellington’s food and drink industry.  
Taryne Cullen worked at the well-known fast food outlet Pita Pit on Featherston Street.  Cullen took time off for a knee operation, but when she tried to return she found her name was not on the company’s roster, accessible through a private Facebook page.
Cullen contacted the owners, and a few days later was told via Facebook that there was no room for her.

Brooke Adams also worked for Pita Pit and, like Cullen, found that her name had been removed from the roster.  On contacting the owner she was told she didn’t have a job and was asked to return her uniform.
When contacted by the media, Pita Pit Featherston St owner Wayne Cui said he was new to running the franchise and accepted things could have been done better.  He said that if the former workers wanted to talk then “the door was always open”.
A third, unnamed employee from Pita Pit has also found herself in a similar situation and apparently is considering taking legal action in the Employment Relations Authority.
All three would be well advised to go through the owner’s “open door” and attempt to negotiate a satisfactory outcome.  On the face of it they seem to have a very good case.
Moving away from Featherston St, the second case involved John Chan, a duty manager at Liquorland Miramar. Chan’s troubles began when a customer complained about Chan to Mark Satherly, a director of the business.  The customer claimed Chan treated her rudely and requested that Satherly take that up with him. Satherly did and when questioned, Chan gave a very different explanation.
Shortly afterwards, Satherly visited the premises while off duty one Saturday night and complained to Chan about inappropriate music that was playing.  He told Chan to change the music, which Chan reluctantly did. The change was temporary, however, and Satherly subsequently discovered that Chan had changed back to the original music as soon as he left the store.
A formal meeting was called by the employer to discuss concerns, including the customer complaint and the music issues. Before the meeting could be convened, however, Chan sent a disparaging and belittling email to the customer who made the original complaint, accusing her of being “rude and self-important”.  He also claimed in the email that he was reminded of the infamous Aaron Gilmore controversy.
Obviously Chan was asked to explain. After Chan referred to the customer as “Miss Piggy” and claimed that the employer had no right to bring up the complaint, he was dismissed.
Chan went to the Employment Relations Authority claiming that he had been unjustifiably dismissed. Not surprisingly, the Authority had little sympathy for Chan and his case was unsuccessful.
Both of these stories involve local establishments that will be well known to many readers and, accordingly, of particular local interest.  Both also involve the use of electronic media. In the case of Pita Pit, the use of Facebook.  In the case of Liquorland, email.
Liquorland has been to the Authority and was successful.
However, from what we have been told, I suspect Pita Pit may not get a similarly favorable outcome should its matter go to the Authority.  
The important lesson for readers is that employment law applies despite the plethora of social media and electronic wizardry that is so prevalent today.  In the case of Pita Pit, employees are entitled to a fair and proper process in accordance with natural justice before they lose their jobs.
Conduct that destroys trust and confidence with an employer can, following a fair process, lead to dismissal. Liquorland’s case shows that
Let’s hope the arrival of summer brings a positive change to the way people treat each other in the food and beverage industry, and indeed in general.
Peter Cullen is a partner at Cullen – the Employment Law Firm. He can be contacted at peter@cullenlaw.co.nz. 

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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