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The Employer Strikes Back!
Night and Day, why is it so?
This longing for you follows wherever I go?
Whether near to me or far?
it's no matter where you are?
I think of you, Night and Day.
Cole Porter had an eerie song writing ability. Words which he wrote 50 or 60 years ago have a knack of coming back to provide contemporary relevance.
In the early 1990s, for example, his love song I've got you under my skin was turned into a haunting anthem about HIV and the perils of Aids – thanks to the artistic creativity of Neneh Cherry and the producers of Red, Hot and Blue.
The lines from above – Night and Day – probably also have particular significance (in an equally haunting way) for a Dunedin man, Scott O'Connor.
Night 'n Day Foodstores Limited is the operator of a chain of 24 hour convenience stores. In June 2004, Night 'n Day employed O'Connor to work in its store in Regent Street, Dunedin. His credentials were checked, and he was found to be suitable for the job.
So O'Connor embarked upon a career in that hallowed position of Convenience Store Attendant – in the footsteps of Kevin Smith in Clerks, and (of course) Apu Nahasapeemapetilon in The Simpsons.
At first, everything seemed to be going swimmingly. O'Connor was personable and able, and was well liked by his workmates – and his employer. He started work on 6 June 2004 and was rostered on to work shifts with senior employees to allow him to train on the job.
Night 'n Day was able to give O'Connor the shifts that he wanted, and he appeared happy and secure in the workplace.
Then, without warning, O'Connor finished a shift on 16 June 2004 and never came back. His employer had no idea why he had left his job.
O'Connor did not turn up for rostered shifts on 17 June, 18 June, 19 June and 20 June. In his absence, of course, Night 'n Day was put to the trouble and inconvenience of arranging staff at short notice to cover for him.
Night 'n Day was anxious to work out why O'Connor had absented himself from work seemingly without reason. It wrote to him on 21 June 2004 asking him for an explanation. No reply was received.
Finally, Night 'n Day wrote to O'Connor on 24 June 2004 informing him that it had reached the view that he had abandoned his job (without an explanation) and that, as a result, his employment was terminated.
At this point, there is a curious twist in this story which is particular to the facts of the employment relationship.
O'Connor's employment agreement required him to give four weeks' notice of termination – and, if he failed to give proper notice, Night 'n Day could claim compensation (equivalent to four weeks' pay).
Night 'n Day sought to rely upon this clause – and demanded payment from O'Connor. Ultimately, it was required to bring formal proceedings in the Employment Relations Authority. O'Connor did not appear to defend himself.
The Authority found in Night ‘n Day's favour. It held that O'Connor had abandoned his employment – and had breached his contractual obligation to provide four weeks' notice. It ordered him to pay $1,920 to Night 'n Day and, in addition, required him either to return his uniform, or pay the sum of $237.20 to compensate his employer for its loss.
In the context of employment claims, this case is unusual. It is rare indeed for an employer to take action against an employee – and even more unusual for it to succeed in the way in which it did in this case.
This was a case which involved an employee who simply walked off the job, only days after commencing in his role. It seems that he did not give much thought to his employer when he acted in this way. Now, however, as a result of the Authority's decision, I am sure that he thinks of you, Night ‘n Day.
