$190k – she’s still waiting

Jenny Christall did plenty for her boss – including baking and walking his dog. But he severely underpaid her, sacked her, and refuses to pay what she’s owed. reports.

From 10pm each night until 6.30am, Jenny Christall was the only staff member at work at Blenheim’s Quality

Hotel.

Bar service, late check-ins, lost keys, wake-up calls, early breakfasts: every call was routed to her room on site at the 30-bed hotel.

She even walked Lily, her boss Kerry Barton’s dog, and made scones for Barton and his wife Lee.

But for a 79-hour working week, Barton paid her just $310, plus meals and free accommodation and utilities. Christall says she never complained, because she loved the job and was worried that, at 59, she might not find another.

And then, after four years’ work, she was made redundant when Barton handed her a letter asking her to leave the hotel the same day.

The Employment Relations Authority was not impressed. It found Barton had underpaid Christall and unfairly dismissed her. The authority ordered that his company, KLJ Ltd, pay her

$191,876.

That decision, including a series of findings on the details of the case, was made in August

2019. And until now, KLJ has not paid Jenny Christall a single dollar.

Barton, KLJ’s sole director and shareholder, didn’t tell the authority that he had actually sold the hotel until after the verdict was handed down.

He still runs the hotel, but in an affidavit filed in April last year, he said he had sold the business for

$3.5m and was leasing it back – but almost all the money had gone, and the company couldn’t afford to pay Christall anything.

Christall’s advocate, Robert Morgan, says that was a ruse to avoid Barton himself being held personally liable for the debt. He is now trying for a judgment to make him pay up.

But Barton says he simply cannot afford to pay anything: the pandemic has cut visitor numbers by 60 per cent, leaving the hotel in a ‘‘dire’’, heavily indebted financial situation.

Christall, who has suffered great personal trauma in the past few years, says: ‘‘All I’ve been doing is just waiting: it is a huge amount.’’

Welcome home

Jenny Christall had been living in Sydney, and working at the city’s international airport, but came home to Nelson when her 28-year marriage broke up.

At first, she lived with her elderly and infirm parents, but wanted to return to work. She did a computing course through Work and Income, and then saw an advertisement for the job of night manager at the hotel in Blenheim’s Nelson St, just outside the town centre.

She was interviewed by 64-yearold hotelier Kerry Barton. There was no employment agreement, she says (Barton denies this). Wages were only touched upon, with Barton saying they could be negotiated, Christall claims.

He started her at $250 a week, with a free room and two meals a day, which rose to $310 a week after two months. ‘‘It did strike me at the time [as underpaid] but I was desperate, because I was 59, and I thought what sort of job could I get at that age?

‘‘I was just out of a 28-year marriage: I was pretty battered and just thankful to get a job. I had the accommodation, which was great. And I did love the hotel. But I did feel it was not enough.’’

It was a small staff: the Bartons both worked in the business; there was a receptionist, a cleaning crew and a couple of chefs. Christall did some waitressing, bar work, even looked after the dog when they went away (Barton says she wanted to do this, as she loved the dog, and he had to reprimand her for feeding it KFC takeaways).

She would often start at 5pm, with waitressing and bar work. Then from 10pm, she was in sole charge, dealing with lost keys, late check-ins, wake-up calls and room service requests. Lily the chickenloving dog would sleep in her room.

Sometimes, she says, she made hot drinks using lemons from her parents’ garden for under-theweather aircrew staying at the hotel, and scones for Barton’s wife Lee.

In four years, she took just 13 days off, and when her father died of lung cancer, she was afraid of losing her job and took just a single day off. Occasionally, she says, Barton would offer her the night off: but she always had to be back by 10pm to take over.

‘‘I did a lot for them, because I enjoyed my job,’’ she says. ‘‘But when I look back, I feel I was played.’’

In 2017, the business was struck a major blow. The hotel lost a contract with Air New Zealand to accommodate its flight crews on overnight layovers. The crews were up to a third of the hotel’s business at any time, Christall estimates.

On July 26, Barton put a letter in the staff’s payslips suggesting possible redundancies: ‘‘Although I hate the thought of making anyone redundant it is important the hotel remains profitable so as to ensure the viability of the business.’’

She says she asked him if it would affect her job, and he said he wasn’t sure. There were never any meetings about the redundancy process.

Instead, on August 8, she recalls: ‘‘He said ‘Oh, Jay Jay, I’ve got a letter for you’. He sat in his chair and put his head down and stared at his desk.’’

The letter said her job was disestablished that same day and ‘‘as of this date you will not be required to work and we ask that you vacate your room in a timely manner’’.

Christall left immediately, with a friend coming over to pack up her room. A week later, she returned to pick up her final pay and was dismayed to find it was much less than expected: ‘‘I said ‘where’s my holiday pay?’ ’’

‘‘I was just out of a 28-year marriage: I was pretty battered and just thankful to get a job.’’

She enlisted advocate Robert Morgan, who filed an ERA claim. Barton cancelled one mediation settlement, declined to reach an agreement at the next, and did not turn up to the ERA’s ‘‘investigation meeting’’, at which both sides lay out their cases.

In a determination delivered in August 2019, authority member Peter van Keulen found wholly in favour of Christall.

He awarded her $148,563 in wage arrears, $24,116 in lost holiday pay and public holiday entitlements, and $18,000 compensation for the hurt and humiliation of her unfair dismissal, plus $1132 in costs.

Morgan says it was the largest decision he’s ever seen.

When it came to her dismissal, van Keulen ruled KLJ had not run a proper process. The company ‘‘failed to consult at all over the proposed restructuring and possible redundancy’’, and he awarded Christall the full compensation she had asked for.

He said the company never produced evidence of an employment agreement, and so working on a formula that her accommodation was worth 15 per cent of her wage, found that there was a shortfall of $500 to $600 a week in her salary to reach minimum wage.

Case law about ‘‘sleepover’’ positions calculates whether an employee is due payments based on their responsibilities, the restrictions those duties placed on their freedom and the benefit to the business.

For example, in a 2019 decision, Nelson College was forced to pay out a former housemaster in its boarding section for unpaid sleepover duties.

Van Keulen said it was clear Christall was working while on site and on call and provided a ‘‘clear benefit’’ to the business.

In its written submissions, though, KLJ claimed there was an employment agreement which covered off the minimum wage agreement and argued Christall had not established her case, and ‘‘therefore could not properly respond’’, so offered no evidence as a result.

Barton said he refused to fight the case because while Morgan had initially suggested a settlement of around $40,000 – which he said was ‘‘realistic’’ – once the claim climbed above $180,000 he knew he had no prospect of paying up.

He believes he met the minimum wage because the room, board and utilities were worth far more than the $150-a-week value placed on them by the ERA.

‘‘The whole thing, I thought . . . was pretty blatantly ridiculous,’’ he says. ‘‘I think you can see that someone living in free accommodation, free food, and free power was worth more than $150. I’d like someone to give me that [deal].

‘‘The ERA look at it differently: any non-cash payment is not worth anything, that’s pretty much what they are saying. You could probably pay them in gold bars, and it wouldn’t be worth cash, that seems to me to be what they are saying.’’

He admits he could have handled the dismissal better but blames Christall for the loss of the Air NZ contract.

An employment agreement signed in Christall’s name was tabled before the hearing. The signature appears markedly different to one on a copy of Christall’s driving licence supplied to Stuff. She denies ever sighting or signing it; Barton is adamant it is genuine.

‘‘She signed agreeing to it. I know she said she didn’t, but that’s just not true. If she thought I was ripping her off, why did she hang around for five or six years? She knew she was on a good wicket.’’

When KLJ simply failed to pay the amount ordered or negotiate a settlement, Morgan filed a request to the ERA in January 2020 asking for a

compliance order to force either KLJ, or Barton himself, to pay up.

It was then, in an affidavit in response, that Barton revealed he no longer owned the hotel.

He explained he’d bought the hotel from a company called Marlborough Hotel Ltd, which left a vendor mortgage to finance the purchase. In March 2018, KLJ had sold the hotel to Auckland property investor Murray Barclay for $3.5m.

But of that money, $2.821m had gone to repaying that mortgage and about $400,000 in retentions by Barclay for repairs and operating expenses. Barton had lent $60,000 to his son to purchase a business, for which ‘‘repayment is uncertain’’, and the ‘‘balance was spent on car and family requirements’’.

Barton reported that KLJ, at April last year, had just $81,000 in the bank, of which $68,000 was committed to that month’s rent and wages payments. There were no saleable assets, and little value in the lease, which in the Covid climate was ‘‘unsaleable, except in a ‘firesale’ rate’’.

He added: ‘‘The company is not in a financial position to offer the respondent part payments of deferred payments . . . there is no cash on hand, there is no cash flow to allocate to the respondent.’’

Barton says the hotel is still in severe trouble, business is down 60 per cent, and he doesn’t expect it to be profitable until 2025. ‘‘Realistically, the position is that

the company is probably not going to last.’’

Asked if that means losing the lease on the hotel, he says: ‘‘If this goes on much longer, it’s the most likely outcome.’’

He says debts have ‘‘skyrocketed’’ and he has personal guarantees he can’t meet. ‘‘The situation is quite dire, to be honest, and I’m not different to a lot of others in hospitality.

‘‘Every day I come to work I’m almost loath to start up my computer, because people are demanding cash. And it is all money I owe, no doubt about it, but at the end of the day, when the government says by the stroke of a pen, ‘there’s no customers any more’, and that’s completely, utterly 100 per cent out of my control, there’s nothing I can do about it.’’

Morgan has responded to the affidavit by saying Barton never told the ERA or Christall of the sale, alleging that was a deliberate tactic ‘‘to avoid the sole director being named in any action against him’’.

I n recent years, the ERA has allowed actions to be taken against individual company directors for liability, to stop companies simply liquidating to avoid payouts.

Morgan says having Barton ‘‘named’’ would ‘‘make it more difficult for him . . . it would be a

glimmer of hope that it will force him to the table to negotiate, but it is a long time the money has been in his bank account, and Jenny has been $160,000 in wage arrears’’.

Morgan says the ERA had been very slow in issuing a final decision on compliance. He admits enforcement was difficult and Barton has not engaged in trying to settle.

‘‘He hasn’t even made an offer to Jenny to make a progress payment – so he has paid a lot of money on legal fees to avoid making any sort of payment.’’

Asked if he could make any payments at all, Barton says: ‘‘I have no money. There’s just no money. I’m not telling a lie here. The place will just go into liquidation within days [if he’s compelled to make payments].’’

He says he has no assets. While he has jointly owned multiple residential properties in the past with his wife Lee, the couple now live in a suburban home in

Blenheim owned solely in Lee Barton’s name.

If he was pursued personally, Barton says: ‘‘To be honest, it is irrelevant to me. They might get some satisfaction out of it to say ‘we made him bankrupt’: but they won’t get anything out of me [financially].’’

Quality Hotels are franchised to the 7000-hotel international chain Choice Hotels. They did not respond to an approach for comment.

The long wait

When Jenny Christall left the hotel, she went to nurse her mother, who passed away a month later.

Now retired, she has suffered through kidney stones, cancer (and chemotherapy) and a hysterectomy in the two years since she left the hotel, health problems she blames on the stress of the case.

‘‘I feel ripped off,’’ she says. ‘‘I am losing hope, and faith in the system.’’