Man fired from KFC while in jail loses wrongful dismissal case

Man fired from his job while incarcerated has lost claim for unjustified dismissal. Photo / Dean Purcell

An Auckland man who was fired from his job at KFC while incarcerated has lost his claim for unjustified dismissal with the Employment Relations Authority (ERA).

Former KFC Papakura worker Rohit Arora sought compensation and the reinstatement of his job after alleging his dismissal for abandonment of employment was unfair because he only became aware of it after he was released from jail and it was his employer's responsibility to find him in the prison system before taking action to dismiss.

According to ERA documents, Arora was arrested on September 10, 2016 for a matter involving his then-partner – charges which have since been dismissed – and was denied bail two days later.

The ERA heard how his partner at the time had informed KFC Papakura of his arrest on September 11, and following the denial of bail, Arora's criminal barrister's attempted to contact the store, but was forced to leave a telephone message informing them he would not be coming into work as he had been imprisoned.

When Arora failed to attend work for three consecutive rostered shifts on 14, 15, and 19 September, KFC owner Restaurant Brands sent a letter dated September 26 to his last known mailing and email address.

According to ERA documents, the letter outlined concerns about his failure to attend work due to imprisonment, the possibility of a conviction impacting on his future employment and established a meeting to be held on September 29.

Arora's then-partner emailed Restaurant Brands informing them of his release on October 5, prompting Restaurant Brands to postpone the meeting to October 14, which was outlined in a second letter dated October 7, the ERA heard.

When Arora failed to attend the meeting (due to still being imprisoned), Restaurant Brands terminated his employment 10 days later.

Arora was granted bail on January 28, 2017.

Upon learning of his dismissal, Arora told the ERA he instructed his lawyer to send a letter dated February 7 attempting to raise personal grievances of unjustified disadvantage and dismissal.

However, according to ERA documents, the letter contained scarce information about Arora's dismissal grievance with no explanation for why or how the dismissal was unjustified.

It wasn't until August 31, 2017, when Arora filed his statement of problem with the ERA, that any specificity regarding unjustified dismissal was raised. It was in this document he alleged his employment was terminated "without me being given any chance to explain" and Restaurant Brands should have known he was in prison.

In response, Restaurant Brands submitted to the ERA that, in addition to the letter of termination sent to his last known contact address, Arora had constructive knowledge of his dismissal because his employment agreement provided for abandonment and therefore knew he would have to contact them regarding his whereabouts and failure to attend work.

However, Arora took no further steps to contact them even after he was made aware his lawyer could not contact his employer when he was denied bail, Restaurant Brands told the authority.

Restaurant Brands also claimed Arora's last day to raise a personal grievance was January 22, 2017. This date was disputed by Arora based on his alleged lack of knowledge of his employment being terminated until his release date of January 28 and therefore the 90-day limitation period should run from that date.

In its ruling, the authority noted that there were indications Arora knew prior to January 2017 that his employment could be terminated.

The authority said Arora's request to his criminal lawyer to contact his employer in September 2016 to explain his whereabouts can be for no other reason than to seek to preserve his job.

But by October 2016 Arora had taken no further steps to contact his employer, the authority said.

The authority rejected Arora's claims that it was Restaurant Brands' responsibility to find him in the prison system, saying it was more reasonable that Arora took steps to inform them of his situation and location, and the absence of contact would have reasonably led his employer to believe he had abandoned his employment.

The authority ruled a reasonable employee would have expected to have his/her employment terminated and therefore his personal grievance was out of time when it was allegedly raised on February 7, 2017.