When Auckland went into level 4 lockdown in March 2020, workers were sent home with supplies to continue making soap and other mānuka-based products.
Jolly started a Facebook Messenger chat group to communicate with her employees during lockdown.
Tensions rose between van Niekerk and Jolly after Jolly put pressure on for staff to post daily exercise videos for Facebook and Instagram.
Jolly said: "All videos to be up by 7pm … make it fun and make it viral."
The same day van Niekerk advised Jolly via the group chat she had run out
of some of the raw ingredients and was down to a quarter of a bag of salt.
She also expressed reservations about the videos, saying it was not her thing.
Jolly responded saying: "It's 'not my thing' to pay people when we are all pulling together socially as a team to get through and make our business socially strong. This is what pays people's wages."
On Tuesday, March 31, Jolly messaged van Niekerk to see how things were going and van Niekerk replied she had nothing to do because she had run out of supplies.
Jolly was annoyed van Niekerk had not mentioned she had nothing to do but said she would have work for her the next day.
Van Niekerk replied on a group chat: "Sweet as, I only have lav and rose frag, a small amount of coconut oil and blue & red dye, that's it."
Jolly retorted saying it wasn't "sweet as" and said she was angry.
"Just can't believe that you are at home for two days with no work being done whilst I'm working crazy hard to support everyone. I'm not going to reply anymore. I'm too angry. I'll revert back tomorrow," Jolly said, according to the ERA report.
Van Niekerk didn't reply and told the ERA she was embarrassed by being criticised publicly on the group chat.
Later that day Jolly was messaging on the group chat with another employee,
arranging for a product to be dropped at van Niekerk's home.
The ERA reports says Jolly messaged something which she later removed. It says the other staff member replied: "Lacing of Cyanide" is that a separate product?
Jolly told the ERA it could not be proved what she had written and, when pressed, she
said she could not recall.
Van Niekerk said she saw the comment and the ERA accepted her evidence it referred to something along the lines of a lacing of cyanide.
The reply from the other staff member supported her evidence.
The ERA report says Jolly also replied to the other employee "or cocaine. Just being nasty sorry".
The other worker messaged "Lacing of cocaine Lol" with Jolly suggesting it "might hurry the videos up" referring to van Niekerk's reluctance for the social media posts, the report says.
The relationship broke down further when in early April van Niekerk was sent a new employment agreement.
The new contract included an additional clause requiring social media involvement.
Van Niekerk questioned this, saying it had little to do with her current job role as a soap-maker.
Van Niekerk also noted her permanent 20 hours a week Tuesday to Friday provision was replaced with a "as required" arrangement.
Later that day Jolly replied by email, saying the changes to the agreement were within her rights.
"As a business owner and as it is a state of emergency I am within my rights to change
any employees to casual going forward as it is my responsibility to see the business
survives," she said.
"I'm issuing the new terms of your contract within my rights under this state of
emergency."
She added: "You are welcome to give me a call but I'm [sic] my end I have no flexibility as this is my business … So if you don't like it. Then leave after the 12-week subsidy."
Having received Jolly's position, van Niekerk told the ERA she felt she had no choice other than to resign.
The ERA agreed.
Nicola Craig, from the ERA, pointed to a number of factors that led to van Niekerk's resignation.
• Rudeness on group chat, especially the cyanide and cocaine comments;
• Pressure to do social media, including as part of the new agreement;
• Change from permanent contract to casual with no discussion;
• She felt pressure to be involved in actions which she did not consider right in
lockdown particularly a request to pick up products from work and items being dropped off and collected from her home.
The ERA found van Niekerk was constructively dismissed (where the impetus for the resignation comes from the employer) with Jolly saying if van Niekerk did not like the new agreement she could leave.
The ERA also said Jolly was wrong to think lockdown meant she could change a contract without discussion, saying Covid-19 did not remove the usual obligations on parties to an employment agreement.
The ERA ordered Honeybunch to pay van Niekerk $2268 in lost wages and $18,000 compensation for humiliation, loss of dignity, and injury to feelings.
