Uncooperative employers – you can’t escape

Murphy v Hobsonville Point Medical Centre

Last month’s story gave a useful example of how to deal with uncooperative employees. This month we have an uncooperative employer and an example of what happens to those who try to avoid their responsibilities. (It is very expensive.)

Ms Murphy was appointed to a role as part time administrative receptionist at the Hobsonville Point Medical Centre Ltd. The sole director and shareholder of the medical centre is Dr Ayad, who was in the process of establishing the centre from scratch. When the building was nearly completed, she recruited the staff, and Murphy joined the team in on 27^th July. She worked for the next 3 days helping to get the centre set up and ready for business.

At the end of the third day Dr Ayad told Murphy that her services were no longer required. When asked why, she said that she had not answered the phone professionally and her colleagues had ‘issues’ with her. (The only colleague later testified that they got on well together.)

When asked for payment for the 3 days work, Dr Ayad refused to pay her, saying that the clinic had not opened. Indeed, Ayad denied that she employed Murphy, saying that , although she spent the three days at the clinic, she had not been working. Unfortunately for Ayad, Murphy produced the email with her employment agreement and welcoming her on the team.

Ayad found a very big sandpit and buried her head in it. She said she passed the matter onto lawyers and told them to ‘sort it’. She didn’t read the letters from the lawyers and didn’t respond to Murphy’s lawyer either.

Ayad then changed her story and said that she didn’t dismiss Murphy but told her she was not needed at the clinic until it opened when the work was finished. She said she left a voicemail for Murphy telling her when the clinic would open. Murphy said she didn’t receive the message. Ayad than argued that since Murphy didn’t respond, she had abandoned her job.

In the face of such conflicting evidence, the Authority has to make a decision based ‘on the balance of probability’, which is a lower standard of proof than that of ‘beyond reasonable doubt’ which is required for criminal judgements. The Authority Member commented that she didn’t find Ayad’s evidence convincing – her evidence was internally inconsistent, and she was quick to shift the responsibility for actions that were clearly her responsibility. By contrast Murphy was a straightforward and credible witness. Ayad had some incredible suggestions as to why Murphy turned up to work each day for 3 days when she wasn’t employed there.

The decision states that ‘the absence of suitable work…does not alleviate the Medical Centre’s contractual obligation to pay Murphy wages for the hours recorded in the employment agreement’.

The authority found that:

• Murphy had been employed by the Medical Centre
• She had been dismissed
• The dismissal was unjustified on both procedural and substantive grounds (substantive grounds are that the employee had to have done something wrong that justified the dismissal).

The remedies reflected the gross unfairness of the situation. Although she only worked 3 days Murphy was awarded:

• 13 weeks’ lost wages ($4,420)
• Hurt and humiliation of $6,000 and
• Costs of $1,750.

Furthermore, Ayad told the Authority she intended to close the Medical Centre as a result of Murphy’s claims, so she was ordered to pay the full amount of the award within 28 days. (According to the companies’ office website, the Centre is still in business and Ayad is still the sole shareholder and director.)

This case must have done huge damage to Ayad’s business because we all want to have a GP we can trust to be honest with us in tough times.

Anne Aitken, HR Professional, anne@anneaitken.co.nz