Auckland woman wins $10,000 after job issues at Muffin franchise

Author
NZ Herald,
Publish Date
Sun, 28 Mar 2021, 4:12PM
The woman had been working as a cafe assistant at the Muffin Break cafe in Botany Town Centre. (Photo / Google Maps)
The woman had been working as a cafe assistant at the Muffin Break cafe in Botany Town Centre. (Photo / Google Maps)

Auckland woman wins $10,000 after job issues at Muffin franchise

Author
NZ Herald,
Publish Date
Sun, 28 Mar 2021, 4:12PM

A woman not long out of school has won $10,000 after various issues with her employer, including limiting breaks and an unexpected disciplinary meeting in the middle of an Auckland mall after which she was comforted by a customer.

After responding to a Trade Me advertisement, Rebecca Young started as a cafe assistant at the Muffin Break cafe in Botany Town Centre in early September 2018.

The cafe franchise was operated by Bourson Limited, and De Kai (Larry) Lu was the sole director at that time.

Young started work without a written employment agreement but, seeking a contract, was sent a link to a drop box containing a contract template.

In November 2018, she received a hard copy document with many or all of the same gaps as the previous version.

The next day she went into work but was not allowed to resume her duties before signing on.

Young did not see a problem with working while she sought advice, given she had by then already been working for more than two months without any written agreement.

The trial period terms was disputed. Young refused to sign the agreement when she believed the trial period was unlawful.

Upset, she contacted the head office. Shortly afterwards, Lu called to apologise. He said she would be paid for her time and accepted the trial period was indeed invalid.

The Employment Relations Authority (ERA) concluded Young had been sent home twice by Lu when she would otherwise have been working.

"She not unreasonably concluded this was because she would not sign the agreement immediately. This amounted to a suspension from work."

It was one of three grievances the ERA's ruling established.

The other two were failure to provide rest breaks, and unjustified warning.

The ERA said Young's understanding was that she was entitled to a 30-minute lunch break plus two 10-minute breaks.

During her employment, however, one break was cut. Young said Lu told her she was not allowed it if she needed to go to the bathroom during the shift.

"Mr Lu suggested that Ms Young took an excessive number and/or excessively lengthy bathroom stops," the decision reads.

"He was not directly aware of this given his limited attendance at the cafe and what he reported seemed unlikely."

Once Young checked with head office - finding Lu had misunderstood them - the second break was reinstated.

On December 2, 2018, Lu called Young asking to meet the next day.

"Ms Young says when she tried to find out what the meeting was about, he responded 'don't worry about it'. Mr Lu denies this."

She assumed it was a staff-wide meeting. Lu claimed he mentioned the meeting was about her performance.

"I do not accept that," the ERA said.

"Ms Young was focused on her rights and sought information and assistance from her parents about work issues."

The ERA did not believe she would have gone into a formal performance or disciplinary meeting without preparation and "probably support".

Lu told Young she was not allowed to make coffees, which she challenged.

"He required staff to have coffee-making training from him before providing coffee to customers although it was not clear that this was enforced by the cafe's manager or supervisor."

Unlike other staff, however, Young had a barista's certificate.

"Mr Lu had not seen the certificate and in any event, had not provided the full training."

Lu then arranged for the two of them to meet at one of the customers' tables in the mall.

He asked a supervisor to join them.

Lu started to discuss Young having her phone on the shop floor.

"She protested, asking why she was the only one getting in trouble about that as others
also kept their phones with them. Mr Lu replied they had his permission.

"However, he acknowledges that he did not ask her for their names and did not follow up with the manager whether others were using their phones inappropriately.

"He said other staff had seen Ms Young using her phone in the cafe. She felt he had staff spying on her."

At this point, Young asked about the supervisor's presence and Lu replied that was so they had a witness.

"Ms Young asked what about her support person to which Mr Lu replied that she could get one but he carried on talking."

Lu said if she used her phone again at work there would be "serious consequences".

Young described voicing that he was looking for reasons to fire her and Lu replying that she could think what she wanted. He could not recall saying that.

During the meeting, Young developed a headache and a sore stomach, so asked to go home.

"[Lu] said he could not see any reason for her to go home. When she reiterated that she felt sick, he agreed she could go after he printed out a warning letter."

An upset Young was comforted by a customer.

"There were unfair aspects to this process," the ERA said.

"There were limited venue options but meeting at the cafe, particularly at that time of day, was unfortunate."

Young had not been given any notice of what the meeting was about, despite trying to find out, the decision said.

"She was only offered the possibility of a support person partway through the meeting when she raised it."

Young also claims Lu had earlier agreed she could keep her phone with her in case there was an emergency at her child's day care.

"She accepts that every now and then she went on her phone for other things, but says all staff did that."

Young found the unexpected December 3 disciplinary meeting very upsetting.

"The public setting of the meeting disturbed her," the ERA said.

"She became very tearful which was embarrassing in the middle of the mall."

The ERA ruled Young was issued a written warning "without having received a fair and reasonable process".

Resignation

Young wrote to Lu raising a personal grievance claim about the company not acting in good faith and being involved in victimising, intimidating and threatening behaviour.

She outlined the problems, including the delay in providing an employment agreement, sending her away for not signing, limiting breaks and the disciplinary process.

"Ms Young describes everything as being different after she raised her grievance,
with none of the workers wanting to talk to her. She felt like she was alone."

Lu described Young walking out of work, swearing, on January 22, 2019, because he would not give her the weekend off. She was uncertain these events happened.

She did recall asking Lu for a period to cool down.

By January 23, she hated going into work and stopped going.

"She felt she was not coping as she was frequently emotional."

Late the following day, she emailed Lu to resign.

"The email refers to her having nothing but grief whilst employed and it being unbearable, affecting her personal life and mental health," the ERA said.

She referred to feeling like the "black sheep", being treated differently.

"Mr Lu emailed back saying he was sorry she felt that way as they had tried to help her. He accepted her resignation. Ms Young did not reply."

The ERA awarded Young $4000 for the suspension, $2000 for not allowing breaks and $4000 for the disciplinary process and warning.

A constructive dismissal claim she made was not established.