A coffee-cart owner has been ordered to pay $6867 to a sacked barista after he suspended her on allegations of theft but never gave her the time or place for a disciplinary meeting.
The process followed by Coffee Shack owner John Everiss that ended in the dismissal of Chloe-Jane MacLeod was so flawed that it was not what a fair and reasonable employer could have done, a determination by the Employment Relations Authority [ERA] has found.
But Everiss, aged in his 80s, has told Open Justice he believes the outcome is unfair, and said he can't understand why criminal charges related to the case against MacLeod were withdrawn.
He was considering appealing to the Employment Court.
ERA member Claire English said Everiss failed to prove the allegations of theft by MacLeod on a business bank card she used to buy goods for the cart, parked in a carpark in Te Horo, north of Wellington.
MacLeod had only been working at the cart for three weeks when Everiss reviewed spending on the card while she was on holiday from January 1, 2019, and found there were more purchases made on the debit card than he expected.
The card was shared between MacLeod and Tony Furze, who ran a nearby hot food truck also owned by Everiss.
It was kept in the Coffee Shack, attached to a hook near the door, with the PIN number written on a post-it note and kept near the card.
MacLeod would take the card home at night and purchase supplies needed for the following day, while Furze used it during the day to buy food truck supplies.
The pair would cash up at the end of each day and Furze would record this in a balance book.
Other workers before MacLeod also used the card this way as did stand-ins when MacLeod couldn't work.
Everiss presented the bank statements to Furze who identified his business purchases which Everiss accepted as valid, the decision said.
Furze suggested MacLeod was responsible for the remaining charges and after a discussion the pair decided some of them were not valid business expenses.
"In evidence, it became clear that Mr Everiss relied almost entirely on Mr Furze's accounting in deciding what charges were valid business expenses, and what charges were invalid," English wrote.
The day before MacLeod was due to come back to work, Everiss' son Brent Everiss, texted MacLeod and told her: "No work tomorrow you are suspended to further notice" [sic].
MacLeod texted back, asking: "Under what grounds and why? Can u get John
to contact me..."
The next day, on January 10, John Everiss wrote to MacLeod telling her they had launched an investigation into "dishonesty within the business", in particular, misuse of a business bank card.
He said she would be stood down on full pay during the investigation and they would like to meet her to discuss the findings on January 22. It also referred to the prospect of "instant dismissal".
At the same time he complained to police and it was through a visit by police to her home that MacLeod became aware of the allegations against her, according to the decision.
English said MacLeod tried several times to get hold of Everiss, Furze and Everiss' daughter-in-law through an email provided in the letter, and got no response.
On the day of the meeting, Furze tried to call MacLeod but rang the wrong number and he and Everiss ended up discussing the investigation findings without her.
Two days later MacLeod hired a lawyer and discovered she had been dismissed.
She raised personal grievance claims for unjustified disadvantage in relation to her suspension, unjustified dismissal, and lost wages and compensation.
MacLeod pleaded not guilty in the District Court to three charges laid against her by police, relating to entering a building and use of the Coffee Shack Eftpos card.
Two of these charges were withdrawn, and the remaining charge was dismissed as the police offered no evidence, English said.
English did not accept Everiss' argument to the ERA that he had not dismissed MacLeod because his consistently expressed opinion to that point had been that he had no choice but to dismiss her.
In considering whether the dismissal was justified, English said it was concerning that Everiss did not consider whether other parties may have used the card.
She said real time bank records did not show who was using the card or what was purchased.
A CCTV photo of a blonde woman entering a BP Service Station on January 2 about five minutes after the card was used there was not enough to establish guilt, and was not available to Everiss when he dismissed MacLeod.
For these reasons the dismissal was unjustified, English said.
MacLeod, who represented herself during the process, said the allegations of theft dented her confidence and reputation because she had always worked "front-of-house" in positions that handled money.
English ordered Everiss to pay MacLeod $4000 for hurt and humiliation, $1605 for wages owed, $133 holiday pay, $129 in interest, and $4000 in penalties of which $1000 would go to MacLeod and $3000 to the Crown.
Everiss, who started John Everiss Contractors in 1964, told Open Justice he considered about $5000 spent on the card was unjustified and he was disappointed with the outcome.
"I feel wronged but what can I do about it? I can't afford $15,000 to go to court and have the same rubbish put up against me."