Won case but still left out of pocket
A DUNEDIN woman who won a wrongful dismissal case which centred on a $1 bag of chips is considering taking further legal action against her former employer.
Kaye Gillan won her case against Birchleigh Management Ltd after the Employment Relations Authority found her employer was unreasonable to dismiss her.
Mrs Gillan’s case was largely based on accusations of workplace bullying, but the ERA emphasised its decision was made on the grounds of whether Birchleigh acted reasonably. It made no findings on the bullying claim.
Mrs Gillan may take her claim further and has met WorkSafe New Zealand, but would make no further comment.
She was fired from her job at the Mosgiel resthome after taking a small packet of potato chips from a cupboard where refreshments for Birchleigh residents were kept.
They were stale, and she threw them away.
Birchleigh — which has strict policies concerning security of residents’ property — found Mrs Gillan’s actions to be serious misconduct and dismissed her, an action the ERA found was unreasonable.
One deterrent to taking further action might be the cost — the ERA recently determined Mrs Gillan’s final compensation and costs and awarded her $4520.71 in lost wages, $18,750 for hurt and humiliation and $8000 for legal costs — a total of $31,270.71, but with some tax due.
However, Mrs Gillan had claimed $35,878.97 in legal costs.
The ERA award showed the expense of bringing a workplace bullying claim meant a victim could not afford to employ a lawyer and cover the legal costs, even if they won their case, Mrs Gillan’s advocate, Alan Halse, of Culture Safe, said.
‘‘We are disgusted with the low ERA payouts, especially costs . . . a lawyer would have charged at least three times as much as CultureSafe, which would conservatively mean that it would have cost $60,000 plus if they had engaged a lawyer.
‘‘Why would anyone use a lawyer to fight a workplace bullying/unjustified dismissal case?’’
In her determination, ERA member Christine Hickey said she shared Mr Halse’s concern about authority remedies being exceeded by representative’s costs, but said Mrs Gillan’s case was one where such high costs should never have been incurred.
Ms Hickey ticked off Mrs Gillan’s legal team for their management of her case and reduced the costs ordered against Birchleigh as a result.
Mrs Gillan engaged Russell Hyslop, as well as Culture Safe, to advocate for her.
However, Ms Hickey said ‘‘they took longer to prepare her case than would be reasonable for even fairly inexperienced counsel or other advocates who appear reasonably often in the authority, as Mr Halse does’’.
Ms Hickey declined an application for travel costs for Hamiltonbased Mr Halse, as suitable and competent advocates were available in Dunedin.
‘‘A significant amount of time was taken by Mr Halse and Mr Hyslop’s continued insistence in presenting the case on the basis it was a bullying case,’’ Ms Hickey said.
‘‘The determination makes it clear that any alleged bullying . . . was not relevant to the proceedings.’’
At best, Mrs Gillan could have expected $9750 in costs from Birchleigh, but given the time taken and conduct of the parties $8000 was a reasonable award, Ms Hickey said.