A former rest home worker has failed to prove her employer forced her out of her job, with the Employment Relations Authority describing some of her claims as “confused”. Nicola Francis took Ruawai Rest Home to the Employment Relations Authority, claiming she had been unjustifiably dismissed because she was given an employment agreement that did not reflect her permanent employment status. She also claimed she had not been paid for public holidays. Ruawai, a Feilding care facility for the elderly, was purchased by its manager Andrea Thompson in April 2015. Thompson kept existing staff on, but they were given new employment agreements. The agreements were not open-ended, with most running for a year. Francis’, however, ran for six months. The new agreement was good at first for Francis as it gave her regular hours – typically four days on, four days off — but she ended up having issues and asked for them to change it. Francis told the authority this didn’t happen, and it could be hard for her to get work elsewhere because she had been jailed for criminal offending. She was called by Thompson the next month, who said they had to meet because of “drama” and concerns she had told staff and residents about her jail time. The pair met, during which she was offered another six-month contract. Francis sought advice and was told the fixed term clause was invalid, and she felt she was entitled to be considered a fulltime employee and given a pay rise. Tensions rose, with Francis lodging a personal grievance. Ruawai engaged legal counsel, and let Francis’ representative know in March 2016 she was considered a fulltime employee. Francis said the working environment became even tenser after lodging the personal grievance, despite Thompson giving her extra shifts and resolving an issue around meal break payment. However, she felt comments being made about her made her feel staff were against her and blaming her for empty beds at the rest home. She also claimed she was not invited to a leaving dinner for a colleague, although the staff member was responsible for the guest list, not Thompson. Francis resigned in September 2016, using her resignation letter to claim Rawai actually fired her in 2015 by offering her a fixed term contract, it did not pay her fairly, and she was not rostered for 40 hours a week. Authority member Michael Loftus found Francis had been paid above minimum wage, and she had no right to a pay rise just because she thought her rate was too low. Francis had accepted the hours she was offered when she signed her contract, he said. “This is not a ground upon which a claim for constructive dismissal can be based.” While the fixed term agreement was unenforceable because it did not comply with the law, it could not constitute a dismissal, Loftus said. “It is equally difficult to conclude it even constitutes a disadvantage.” The threat of termination temporarily existed, but it never happened, and Ruawai fixed the issue. Loftus said that meant they had not breached their duty to Francis, so there could be no breach of the law. Any other issues fell more into the category of Francis being unhappy than Ruawai doing anything to force her out, Loftus said. All her claims were dismissed, and costs were reserved.
