A dentist's assistant has been awarded compensation for being dismissed 91 days after she was employed by the Ashburton clinic. Photo / 123RF
A dentist's assistant has been awarded compensation for being dismissed 91 days after she was employed by the Ashburton clinic. Photo / 123RF
A dental assistant who fell out with their practice manager, partly over the assistant’s communication in Spanish with the business owner, was dismissed 91 days after starting work.
Now, she’s been awarded almost $18,000 in compensation and wages.
Maria Escudero worked part-time as a dental assistant/receptionist for Oak Grove Dentalin Ashburton from October 2021 until she was summarily dismissed in January 2022.
Her employer had tried to rely on the 90-day employment trial period as being a valid grounds on which to dismiss her. However, it was later discovered she had been employed for 91 days, despite having worked only 35 days over that time.
The Employment Relations Authority has found that her dismissal was “callous and peremptory”, and has awarded $12,000 in compensation plus $5685 in lost wages (including holiday pay) for the weeks she was employed, including over the Christmas and New Year period when she was on leave.
The owner of an Ashburton dental practice says the mistake he made when he sacked his assistant was not being fully aware of New Zealand employment law. Photo / 123RF
Escudero argued the dismissal was unjustified.
Her employer, Osvaldo Reyes Gonzalez, who was the director and sole shareholder of the dental practice, initially said she was dismissed during a legitimate 90-day trial period and therefore had no valid claim.
The ERA said later that Gonzalez sensibly did not seek to rely upon the 90 days trial period provision, saying he had mistakenly understood it related to the actual 35 days Escudero had worked.
He accepted this was an incorrect interpretation and that Escudero was in the firm’s employment for 91 days, including the Christmas and New Year holiday period.
Authority member David Beck noted that the circumstances around how Gonzalez handled the dismissal were “unusual”.
He didn’t obtain any legal advice and thought he was able to “easily end the employment without repercussions” because of the 90-day trial period.
Gonzales, who moved to New Zealand from Chile, told NZME he did not intend to appeal the decision and that that practice had learned from “this expensive mistake”.
He said the main mistake he made was not knowing employment law, and failing to document the incidents which led to the dismissal.
“Basically, we did not know the rules of the game and this is the lesson to learn.”
NZME has also approached Escudero, who declined to comment.
She told the ERA she began looking for part-time work around September 2021.
She did not have experience in such a role, but she did have a medical degree, and was hoping for part-time work to suit family obligations, and for relief from the isolation of working in the family’s dairy farming business.
Escudero was offered the job after an interview in early October but was hesitant about the initial pay rate of $20 an hour.
She accepted the role on the basis her pay would be reviewed once she was up to speed with tasks.
Beck said it transpired during the investigation meeting that “significant tension” existed between Escudero and the experienced practice manager over communication issues and training expectations.
Central to the tension was the practice manager’s view that Escudero would not recognise her authority and preferred to deal directly with Gonzalez.
“As context, both Dr Gonzalez and Mrs Escudero often conversed in Spanish [being their first language],” Beck said.
Gonzalez said efforts to resolve their differences failed, and while he thought the practice manager was contributing negatively to the poor relationship, he figured the situation would only be resolved by dismissing Escudero.
Escudero provided fulltime cover from the end of November to December 12, 2021 when the practice manager was absent.
After the Christmas break, Escudero emailed Gonzalez wanting additional unpaid leave until the end of January to coincide with leave her husband had planned.
For February she indicated she was unable to work an unspecified seven days but wanted to collaborate with a newly appointed dental assistant to work out fulltime cover for the role.
Gonzalez said that was “totally fine” but without any further discussion or contact with Escudero, Gonzalez and the practice manager decided to end the employment.
“From evidence, I conclude this was largely driven by pressure from the practice manager threatening to quit if Mrs Escudero returned and the fact that the other locally based dental assistant had commenced employment,” Beck said.
Escudero was told by email on January 19, 2022, and responded the same day with a request to be paid out a few days owed plus her holiday pay.
She also indicated the dismissal had been affected outside the 90-day trial period and without notice.
Gonzalez responded two days later saying no holiday pay was due until “after one year of continuous work”, but accepted a two-week notice was due, claiming he had communicated that on January 19 but in fact, had not.
He then he invited Escudero to return to work up until February 2 or any other time to work out her notice period.
Escudero raised a personal grievance by letter in March, followed by a letter from Community Law Canterbury the following month, claiming she had been dismissed outside the 90-day trial period.
The dispute progressed to the ERA after matters were unable to be resolved at mediation.
In concluding that the dismissal was unjustified, the ERA said no fair and reasonable employer could have concluded that summary dismissal was warranted in the circumstances where the main reason for the dismissal was the relationship between Escudero and the practice manager.
Gonzalez encouraged every small business to educate itself on employment law and get advice from a lawyer before making any serious decision such as terminating someone’s employment.
