Sacked over selfies: $3800 payout for staffer fired after eight hours

Dubby Henry, NZ Herald,
Publish Date
Tuesday, 6 August 2019, 1:16PM
Wei Hu did not get the job because the manager claimed he spent too much time on his phone, including taking selfies on a forklift. Photo / File
Wei Hu did not get the job because the manager claimed he spent too much time on his phone, including taking selfies on a forklift. Photo / File

A man who was fired after two trial half-days because he spent too much time on his phone - and posed for selfies on a forklift - has won a $3800 payout.

His employer had claimed it was a trial period but the Employment Relations Authority has ruled the staffer was technically employed by them - and thus he was dismissed without following proper procedures.

Wei (Jack) Hu worked just two half-days for Biform Ltd in August 2018 as a trial period.

But the boss felt he spent too much time on his phone - including taking selfies on the forklift - and decided not to hire him.

Hu claimed he had been unjustifiably dismissed after the trial, while the company said he did not perform satisfactorily so they let him go.

The Employment Relations Authority has decided Hu was technically been employed by Biform as the company had failed to get the trial period agreed in writing, as required under the Employment Relations Act 2000.

This meant Hu was technically an employee of Biform - and was therefore improperly dismissed, the authority found.

Biform is a small Onehunga company that imports and distributes composite decking made from recycled plastic and timber waste. As the decking is heavy the company holds trials to make sure employees can handle the work.

Biform offers negotiable hours with more work in the high season, and says it always pays prospective employees for their trial time.

Hu and Biform's manager director Tau Aupa'au gave the authority conflicting evidence on what happened over Hu's two-day trial.

Hu said Aupa'au had told him he'd done a good job and that he should come in the next day.

When Hu had asked if there was an employment agreement, and what his hourly rate was, he said Aupa'au lost his temper, saying he was still training, there was no salary or agreement and he was fired effective immediately.

But Aupa'au disputed that, saying he had told Hu he was not suitable for the job. He claimed Hu was often on his phone and seemed inexperienced on the forklift, and said he saw Hu taking selfies while on the forklift - a health and safety concern.

Aupa'au said he had asked Hu for his bank account details to pay him for his time, and denies yelling or getting angry.

They also disagreed on whether a trial period was discussed in the interview.

In the ERA's findings authority member Nicola Craig wrote she found Aupa'au's evidence to be more credible and consistent, as Hu struggled to recall some events.

No employment agreement was provided by Biform. Biform's practise was to only
offer a written employment agreement once a trial period is satisfactorily undertaken, as it did not see those on short trials as employees.

Hu was not initially paid for his work, but the ERA found this was due to a misunderstanding. Aupa'au believed someone else had sorted out payment, and when the omission came to his attention several weeks later, he arranged payment for Hu.

"Mr Hu expected to be paid and was eventually paid for his work," Craig wrote. "The packing work undertaken was for the economic benefit of Biform, even if was not as well performed as was expected by the company."

She found that Hu was thus employed by Biform, and when he was sent away he had been dismissed without proper justification as required by the Act.

Hu told the ERA the incident had made him angry, deeply hurt and less trusting of employers. He was awarded $817 to cover the three weeks he spent looking for another job, and $3000 as compensation for the effects of the dismissal.


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