A pair of students have been unable to prove their unjustified dismissal claims against an upmarket restaurant business in Ōamaru.
The first of the teenage women, Bailie Lynch, had worked for Cucina Ōamaru Ltd from June 2021 until November 2023.
The second, Jessica Crossley, was employed there from February 2022 until November 2023.
They claimed to an Employment Relations Authority (ERA) hearing in Ōamaru that they were unjustifiably dismissed by the company.
Cucina Ōamaru, which operates Cucina Restaurant & Bar as well as the Del Mar restaurant and Tees St cafe operations, denied the unjustified dismissal claims, asserting the pair were casual employees.
Across its operations, Cucina employs about 28 permanent and casual employees. Permanent employees tended to be chefs and managers. Some employees work across all three sites, and this included the pair who made the claims.
“However, it is clear, a genuine belief about employment status, and the absence of an in-force employment agreement … does not, of itself, create a permanent employment relationship,” Dallas said, as he ruled they were both casual employees.
Dallas said his conclusion was based on several factors, including that the pair both accepted they were advised by Cucina that their employment was on a casual basis, and the company’s position on this did not change.
He also found no evidence of a regularised pattern of work. The number and spread of shifts changed weekly and monthly, and shift patterns were variable and depended on the employees’ availability, business requirements and seasonal operational variations.
Dallas also concluded there had been “no dismissal”. Instead, there was “certainly a series of confusing text messages” between company director Yanina Tacchini and the pair, he said.
However, Cucina was penalised in the ERA decision for its failure to provide the pair with employment agreements. Employers were liable for any such failure under the Employment Relations Act.
Dallas said Tacchini had stated that she prepared and signed employment agreements for both employees and passed them to managers, believing they were in place.
“It was not until personal grievances were raised that she discovered this was not the case.”
Tacchini had said she now ensured agreements were signed and she accepted “full responsibility” for the previous delegated authority failure, Dallas said.
The maximum penalty for such a breach is $20,000, but after considering all relevant factors and submissions in mitigation, Dallas imposed a penalty of $500 for each breach.
The penalties are to be paid directly to the pair. Cucina Ōamaru has until June 17 to pay the amounts.
Costs for the proceedings have been reserved, but Dallas noted that given the pair’s success in recovering penalties and their status now as university students with limited means, costs could and probably should lie where they fall.
“The parties are encouraged to resolve any cost issues between themselves.”