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A bar owner ran tequila- and whisky-tasting training and morale-boosting fitness sessions during Auckland’s level 4 lockdown – but still believes he didn’t break the law.
Corey Stevens, co-owner of The Oakroom, in the city’s Victoria Park district, and the Millwater Bar and Bistro to the north, admitted the sessions happened without social distancing or masks when Auckland was under tight Covid-19 restrictions in September 2021.
The concessions form a key part of an ongoing Employment Relations Authority case in which a former employee, Jackson George, is claiming unpaid wages, constructive dismissal, failure to provide a safe working environment and compensation of $17,400, plus penalties and costs.
Stevens’ hospitality company, Xenia Holdings, has already lost one ERA case, being ordered to pay $12,150 to a former co-worker of George, chef du partie Baburam Santra, plus $10,000 in costs and another $4,000 penalty to the Crown.
The ERA found various infringements, including unpaid wages, unpaid holiday pay, breaching Santra’s employment agreement by using a ‘timebank’ system to dock pay if he didn’t work enough hours, and “failing its duty of good faith” by not inducting him into work properly when he first arrived from India.
As a result of that case, Xenia was placed on a ‘stand down list’ by MBIE, which means it cannot have any work visas approved until April 14, 2024.
Xenia’s co-owner, Rohini Jacob, said she was appealing the Santra decision to the ERA and the Employment Court and was also appealing the stand-down decision.
Xenia has also reached a settlement with George’s former manager, Adam Crozier. When called by Stuff and asked if he had employment issues with Xenia, Crozier said: “I am under strict instructions from my lawyer not to discuss that, it is a private settlement.”
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Oakroom staff gather at the bar during lockdown. Director Rohini Jacob is at the far right of the photo with blonde hair.
A fourth case brought by a former Xenia employee was discontinued in the ERA because the complainant moved overseas, and the ERA expects complainants to be present at case hearings.
George’s claims were heard at the opening day of an ERA hearing in Auckland last month, which will conclude on Wednesday, before ERA member Nicola Craig has three months to hand down a decision.
When Auckland went into a level 4 lockdown between August 17 and September 21, 2021, Xenia decided to bring staff into work.
Level 4 rules stated that travel was permitted only for “necessities”, with Covid-19 guidelines suggesting supermarkets, petrol stations and pharmacies as examples.
Stevens told the ERA the work staff did at The Oakroom included administrative work, menu writing, procedures for opening and closing the bars, as well as tastings and learning how to make cocktails.
In a witness statement, he said the tastings were to “make the days a bit more fun” and he ran them because he had a “lot of knowledge to share”.
Staff were also taken for fitness sessions at the nearby Victoria Park. “We wanted to give the staff something to do,” Stevens told the hearing.
George was initially allowed to work from home. When he was told of the training, George texted a manager to say: “It’s still level 4 next week bud. Can’t do that.”
The manager replied: “No worries, that’s fine. All good.” George wrote again: “Are you insane? This is 100% illegal”, and later wrote: “I strongly suggest against that. The risk is way too big. This is shocking quite frankly.”
George says he arrived at the first training in a mask. “But when I got there, I saw everyone sitting there, no masks, no sanitiser even, no bubbles, they were all sitting at close tables.”
He told Stuff that he didn’t complain to senior management because “I knew if I got on the wrong side of the employer, it is not good. I told my manager at the time that what we are doing is illegal, but he said he had talked to Rohini [Jacob] about it, and they are all coming, so I needed to come.”
He said it “seemed like a vacation for them” and also told the hearing: “They considered Covid-19 a joke, but I didn’t because I had lost two family members [in India] to it”.
George was also working at a BP petrol station at the time, but said they adhered to masking, distancing and sanitising rules and were an essential service. He said when he could, he sat alone, as he felt he was a greater risk of transmitting Covid and that would mean he’d “done my part”.
“It was not a choice,” George said. “I would not be getting paid if I did not agree to their terms and I had no other options during that period”.
Stevens and Jacob repeatedly said staff attended voluntarily and denied they would lose pay if they didn’t turn up.
In cross-examination by Jacob, George admitted he hadn’t told senior management he didn’t want to come in. “I didn’t want to be on the wrong side of the company,” he argued.
Jacob pointed to George smiling in one of the group photos, and he conceded he hadn’t objected to being there that day.
Craig, the ERA member, asked Stevens if he thought the sessions were lawful. Stevens said he did. Asked if he felt that was the case even at level 4, he said the bar followed all procedures, providing masks, hand-sanitiser, practising safe distancing and not compelling staff to attend.
Craig asked if they were an essential service, or had an exemption. “Not that I can remember,” he said.
Craig referred to a photo of staff tendered in George’s evidence, in which they are grouped close together and not wearing masks. “It doesn’t look like there’s two metres between them, does there?” she asked. “I agree,” said Stevens.
George’s advocate, Nathan Santesso, asked if the staff could have worked from home. “Yeah, they could have,” said Stevens. “But a lot of them were happy to come in. A lot had cabin fever. They were a pretty happy bunch.”
Jacobs told Stuff that when Stevens told the hearing they’d taken legal advice, he meant they had communicated extensively with the Ministry of Social Development about their plans. She intended to table some of those emails to the ERA.
“From a moral perspective, I think it was the right thing to do – we had a lot of staff who were struggling with mental health, so I brought some of them home to stay with us… Some were starting to take drugs, and I did not want that to happen,” she said.
“So from a moral perspective, I don’t regret anything at all, but seeing the outcome of what has happened here, I question myself… I think I did the right thing. We took all the advice into consideration before we did anything.”
George had arrived in New Zealand on a student visa in 2018, and was living in Hamilton and working at a BP gas station when he met Jacob in May 2021 through a mutual friend and was offered a job. He moved to Auckland, initially on a casual contract, but believed there was the promise of full-time work once he had completed training. Instead, he says, he averaged about 25 hours a week and had to pick up shifts at a BP station in Auckland to supplement the work Xenia gave him.
LAWRENCE SMITH/Stuff
The training sessions were held at this bar in central Auckland.
George was also instructed to sign a bond agreement, which said the company would train him and valued that training at $5,000; they would defray that debt by $1,000 per year, but he would be liable to repay it if he left for another hospitality job within Auckland during that time.
Santesso said there was case law that showed such bonds are considered illegal.
In her evidence, Jacob admitted to what she called a “bonding agreement” with George, but wrote that he would have got an NZQA Level 4 qualification and been on course to secure residency. Jacob said INZ was happy with the bond being inserted into migrant workers’ contracts but she’d never actually acted on it. “We don’t hold anyone hostage. We’ve never brought it up with Jackson, he’s the one who brought it up.”
George said once lockdown came and the wage subsidy was initiated, he was asked to either take unpaid leave, annual leave (of which he had none, due to his casual status) or agree to reduced hours of 25.5 a week.
He also went unpaid throughout September 2021, with his wages arriving in one block in October, with the company telling him the subsidy had arrived late.
He was paid the subsidy for 25.5 hours but only worked the 13.5 hours he was rostered for; he says he was told he should have “chased up” extra work.
Instead, the business began accruing those lost hours as a debt to them, and he felt he had to resign as he would simply keep owing the company more money.
The company said George frequently missed shifts, but he said he missed only two shifts due to a roster change he hadn’t noticed. The company told him he owed them 59.5 hours of work and planned to deduct five hours’ pay from each payslip, a deduction to which he didn’t agree. He then resigned. “I had no option, the more I worked, the more I owed the company,” he says.
Jacob said the time-banking system was used on the advice from an employment specialist, was stated in employees’ contracts and she’d begun making it explicit on payslips. She said it allowed workers to have flexible hours and claim overtime.
Jacob said in her witness statement that George had simply failed to work all his rostered hours, was often late or sometimes didn’t show up and had falsified his timesheets, a “potentially criminal” situation, and had “broken good faith time and again”. She said she had clear evidence in rosters and timesheets that George owed them the time. She says George had considered the Covid subsidy “free money” with no conditions attached.
George quit in November 2021, and says he struggled to find similar work after resigning because he couldn’t use the company as a referee so had to return to BP, before finding work as a civil servant. “I was lost after that,” he says. “My confidence was shattered”.
Jacob, for her part, says she feels “let down” by George. She said she had recruited from the Middle East, India, Europe, the Philippines, Vietnam and Brazil, and was “very confident I am a good employer”.
The hearing concludes this week with evidence scheduled from Jacob, who plans to bring along extra witnesses to testify to her character as an employer.
ERA member Craig will then deliver a decision, likely to arrive around November.
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