But Sharma requested it be earlier on August 8.
“Ms Sharma spoke to Ms Kwon on the phone on August 4 making it plain that she considered Ms Kwon had resigned and there would be no turning back from that,” authority member Alastair Dumbleton said.
“Ms Kwon took the view that she had not resigned and Ms Sharma was in effect ‘firing’ her by requiring her to leave.”
The telephone call was followed up the next day by Sharma with an email where she repeated Kwon had not been fired or made redundant and instead she decided to resign.
Following the end of her employment, Kwon raised a personal grievance with the authority against THS claiming she had been disadvantaged and fired.
Kwon alleged the actions of THS were not justified, the company had breached several statutory employment law requirements, including failing to put into writing the terms and conditions of the employment agreement it had orally entered into.
Mediation was tried but the parties were unable to resolve the problems.
At investigation hearings held in April and August 2022, the ERA heard Kwon’s employment ended following a disagreement with THS about whether she had resigned.
“THS maintained she had given notice of resignation and the employment was ending at her requirement or initiative, not by dismissal,” Dumbleton said.
“Ms Kwon insisted she had not resigned but was being ‘fired’.”
Sharma said she had accepted Kwon’s last day of work would be August 13, and had not taken her resignation in writing, as she was acting in good faith, which didn’t sit well with Dumbleton.
“The hollow attempt by Ms Sharma to pass off her acceptance of an oral resignation as being an act of good faith, does the employer no credit when for over seven months THS arguably had acted in bad faith by failing to provide a written employment agreement,” his written determination said.
Dumbleton found Kwon had only drawn her employer’s attention to a potential difficulty with her days of work and inquired about the availability of another day.
He said THS had not discharged its responsibility to make sure there was no misapprehension about Kwon’s intentions.
“Instead, it seems THS wanted her to leave and transformed Ms Kwon’s discussions about a problem with working Saturdays, into a resignation.”
Dumbleton said the company had not sought to justify the dismissal and accordingly the authority determined it was unjustified and Kwon had a personal grievance.
Kwon was awarded $3872 for lost wages, $689 for sick leave she wasn’t paid, $402 for breaks she was denied, and $15,000 compensation for distress and anxiety.
The authority accepted evidence given by Kwon and her partner regarding the distress, anxiety, and worry suffered as a result of being dismissed, he said.
“She strongly felt the loss of the job she had had part-time for over seven months, the loss of income, and the rejection of her employer,” Dumbleton said.
The ERA also imposed a $3500 penalty on THS for breaching the Employment Relations Act by not providing a written employment agreement, with $1500 to be paid to the Crown and $2000 to Kwon.
In total, the salon was ordered to pay Kwon compensation of $21,464.
Kwon later made an application for costs and on March 28 a determination was made ordering THS to pay her $11,000 for costs and expenses of $971.
