Feud over dirty tablecloths escalates…

Two brothers who worked as chefs in a Vietnamese restaurant have had their personal grievance claims for unjustified dismissal upheld by the Employment Relations Authority.

The employees lived in the employer’s furnished garage, and ate with the employer’s family. The employer dismissed the brothers and told them to move out of her house after they failed to wash and dry some tablecloths. The brothers had been told by another employee that he would do the chore for them.

The ERA found that under his individual employment agreement the employee was to start work on the 20^th of November, but had not begun work until the 9^th of December due to a lack of available hours at the restaurant. The ERA held that an employer cannot refuse to pay an employee just because they are not needed until a later date.

The employee’s mother owed the employer $12,000. It was agreed during the employee’s employment that his income would be used to repay the debt. The ERA held that this arrangement was not part of the employee’s contract and was not an excuse for the employer not to pay him his wages.

The ERA also found that a notebook which the employer used to record payments to the second brother did not meet statutory requirements for keeping a wages and time record. The ERA considered that the payments were not wages but a loan by the employer to the employee.

The ERA held that the brother’s dismissals were unjustified as no fair process was undertaken when dismissing the employees, and failing to wash tablecloths was not a serious misconduct. The ERA doubted whether washing tablecloths was part of their employment agreement but felt it was just an informal family arrangement. The ERA also noted that washing tablecloths in their own time, on a public holiday, was unlikely to be a reasonable requirement under their contracts.

The ERA awarded the first employee $6500 in wage arrears, $500 holiday pay, $300 for lost wages plus $6,000 compensation for humiliation, loss of dignity and injury to feelings as well as $1,000 in penalties for the employer not keeping wages or time records. The second employee was awarded over $150,000 in wage arrears, $12,000 holiday pay, $300 for lost wages plus $8,000 compensation for humiliation, loss of dignity and injury to feelings, and $4,000 in penalties for the employer not keeping wages or time records.

Alan Knowsley
Employment Lawyer Wellington