The Grange restaurant ordered to pay former worker $12,500 despite unheard appeal

The owners of the Grange Bar and Restaurant have been told to pay a former employee compensation ordered by the ERA despite waiting for an appeal against the ruling to be heard. Photo / Alex Burton

The owners of an upmarket Auckland bar and restaurant are challenging a decision awarding a former employee thousands of dollars in compensation - but they have been told to pay up anyway before the appeal is heard.

Wilson-Grange Investments, trading as Takapuna's The Grange Bar and Restaurant, was ordered to pay former front-of-house employee Richard Guerra $12,501 compensation by the Employment Relations Authority [ERA] in March.

The sum related to a claim Guerra made to the ERA that he had not been rostered on for the 35 hours a week guaranteed in his contract, and issues with the way the company had paid the wage subsidy during the national lockdown between March and May 2020.

Guerra also alleged he had been unjustifiably dismissed, after a number of concerns about him were raised and he was sacked for serious misconduct.

The ERA found Guerra had been unjustifiably disadvantaged by not receiving the hours of work he was entitled to, and there were procedural failings with the wage subsidy issues and how allegations were raised and dealt with.

Guerra, however, was not unjustifiably dismissed, the ERA ruled.

The company is challenging the ERA's findings and the amount awarded to Guerra but had sought a stay of execution to avoid having to pay the money before the appeal was heard.

Chief Employment Court Judge Christina Inglis has now issued her judgment in relation to the stay of execution.

Inglis said a challenge did not act as a stay but the court had the power to make the order in the interests of justice.

The company submitted if the stay wasn't granted its challenge could be ineffectual.

"Mr Guerra is a French national, has travelled to France recently, and may return there, making recovery of any amount ordered by the Authority, if the challenge succeeds, difficult," she noted.

Inglis said the court's focus was on assessing the risk.

"It would be a rare case where there was no risk that a defendant might, at some time in the future, be unable to make payment of an award against them," she said.

"If any risk was to be the guiding principle, stays of execution would be routine."

Inglis said the ultimate effect would deny the successful party prompt access to awards made in their favour.

Guerra opposed the stay on the grounds he and his wife were in full-time employment and although he had recently returned to France to visit his mother, he lived in New Zealand.

If the company's challenge was successful Guerra was in a financially stable position and would likely be able to repay the money awarded by the Authority, Inglis said.

"I am not satisfied that the challenge would be rendered ineffectual if the stay was not granted."

In making her decision Inglis noted the approach taken by the ERA to a clause in Guerra's employment agreement, in respect to the Covid lockdown, could assume some importance on the challenge.

Inglis said she was not satisfied it was in the overall interests of justice to grant the stay of execution and declined to do so.