Woman wins $30K after being promised more pay

A bathroom product salesperson who was promised higher pay before it was taken away has been awarded $30,000. Photo / 123RF

An Auckland woman left out of a job after sticking around for the promise of more pay has been awarded $30,000 in compensation and back wages.

The Employment Relations Authority (ERA) ordered Falcon Building Solutions to pay Moana Smith $20,000 compensation for unjustified dismissal, $6000 for unjustified disadvantage and $8387 in wage arrears.

Smith, who was a bathroom product saleswoman, alleges unjustifiable actions of the company's director Nick Khalesi, and his son Sam, forced her to resign from the company.

Smith told the ERA that early last year she approached Nick and Sam after receiving a job offer from another bathroom company offering to pay her substantially more money and give her the opportunity to utilise her interior design skills.

She alleges both Nick and Sam didn't want to lose her, and following their discussion it was agreed that Falcon Building would increase her hours of work, give her more responsibilities and increase her salary to $45,000 – to be paid as soon as the company was in a position to do so.

According to ERA documents it was agreed Smith would be paid "back pay" at her new salary rate from February 1, 2017, until the date of implementation of the new salary.

Smith told the ERA she made a number of requests in the subsequent months for her new employment agreement and was told it would be provided to her.

In an October email provided to the ERA between Smith and Sam, Sam tells Smith "we are still working through things but have a look at the draft for discussion purposes only."

After looking over the employment agreement, Smith says she provided Sam with a couple of minor amendments and the pair later met at a cafe where an agreement was reached on her new employment conditions to be operative from November 1.

In an email provided to the ERA, dated November 7, 2017, Sam tells Smith "I will get your employment agreement signed off soon. Sorry I was off and came back to s**t load of work!"

Smith replied saying: "Hi Sam, all is set up for 1st November with Pay roll with my new rate – thank you. Please advise Nick regarding my backpay from 1st February 2017. This needs to be done with Pay roll this week as well."

On December 7, 2017, Smith told the ERA she was called into a meeting with Nick and was informed her new employment agreement was not going to proceed.

When she asked him why not, Smith says she was told it was because of her poor performance.

According to Smith she was not given any examples of her poor performance.

Following the meeting, Smith returned to her computer to find that it had been used by Nick and it was still logged on to his account.

There she found an email thread between Nick and Sam:

7 December 2017 at 12:18 Sam to Nick: Send me the how much Moana was making before her rise and how much she is getting now! i asked for this four days ago.

7 December 2017 at 12:30: Nick to Sam: Hi Sam please leave it to me you are dismissed from this case, mum said if we increase she will divorce us.

7 December 2017 at 12:36 Sam to Nick: Nick you will run into some problems legally, don't talk s**t please…. You will end up like Cameron with a 9K bill because you want the SMARTMAN!!

Smith did not return to work after December 7, and on December 19 went on stress leave.

During her period of sick leave, the ERA heard how Smith did not receive sick pay, but rather without her knowledge or consent was paid her annual leave.

Smith eventually resigned on January 16, 2018, citing she felt she could not return to work.

In its determination, the authority ruled the actions in paying her annual leave without her knowledge instead of sick leave was a fundamental breach of her employment agreement and those actions forced her to resign.

The authority said Smith had received promises from both Nick and Sam about a new employment agreement and had waited patiently for eight months before having it taking away from her only a month after it was finally implemented – actions that were harsh, unjustifiable and not that of a fair and reasonable employer.

Smith was awarded back pay based on the agreement between both parties. The back pay came to $8134.56 based on 189 working days from February 1, 2017, to November 1, 2017, and a further $252.86 based on 47 working days from November 5, 2017, to January 16, 2018.

Falcon Building failed to return contact with the authority and did not appear at the investigation meeting.