KEY POINTS:
A Kapiti Coast bar manager with a taste for chardonnay was unjustifiably dismissed but contributed to her sacking by her serious misconduct, the Employment Relations Authority has found.
Kim Graham, formerly known as Kim Bramley, took personal grievance action against her former employer, MPJ Holdings, trading as The
Pinetree Arms, claiming she was sacked unjustifiably for consuming wine on the premises without paying for it.
She had worked for the previous owners of the Paraparaumu Beach tavern for 10 years as bar manager before the business was taken over by a company associated with Mark Shaw.
In the five years they worked together, Ms Graham and Mr Shaw got on well, ERA member Gregory Wood noted in his determination released this week.
During that time, Ms Graham landed a number of drink-driving convictions and was required to undertake a significant number of hours on periodic detention, which conflicted with her work.
Ms Graham was given a formal warning in July 2006 for unacceptable conduct including drinking on duty, leaving the bar for personal reasons, staying on after the bar's closure and helping herself to wine, and not locking away takings in the safe.
It was noted that any similar breach would result in immediate termination of her employment.
By March 2007, Mr Shaw was becoming increasingly concerned about after-hours drinking at the tavern in his absence and "shrinkage", for which he believed Ms Graham was responsible.
Over a number of weeks Mr Shaw assessed the amount of chardonnay - a drink favoured by Ms Graham but not many of the sports tavern's clientele - that had not been paid for when Ms Graham was in sole charge of the tavern.
Matters came to a head, as far as Mr Shaw was concerned, last April 30 when Ms Graham was left in sole charge of the tavern.
Mr Shaw drove past the tavern twice that day and noted there were "half a dozen or so" patrons in the bar, which pleased him, Mr Wood said, because it was usually quiet on a Monday afternoon at that time of year.
Reviewing the till tapes the following day, Mr Shaw noted there were a number of "no sales" rung up between 2pm and 4pm and "no sales whatsoever during that period".
Called to a disciplinary meeting the following day, Ms Graham was angry about being accused "and told Mr Shaw so in loud and colourful language".
Ms Graham had no explanation for the shrinkage, but didn't deny it.
Mr Shaw had concluded that Ms Graham had received a final warning over the same issues and that he couldn't tolerate her consuming alcohol during working hours and terminated her employment summarily.
In his determination, Mr Wood said he found Ms Graham's dismissal was unjustified on procedural grounds. She wasn't told what the disciplinary meeting was about and had no chance to prepare her responses.
She was also not given enough time during the meeting to refute the allegations.
However he was satisfied there was sufficient proof that Ms Graham was guilty of serious misconduct "the outcome of which, if properly investigated, would inevitably have been dismissal".
Mr Wood found Ms Graham had contributed "100 per cent" to the personal grievance and therefore was entitled to no remedies.
- NZPA
