| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 43 |
| Hearing date | 3 Nov 2010 - 10 Mar 2011 (3 days) |
| Determination date | 31 January 2012 |
| Member | K J Anderson |
| Representation | M Moncur ; T Mukusha |
| Location | Auckland |
| Parties | Lin v Zhou and Anor |
| Other Parties | New Times Press Ltd |
| Summary | RECOVERY OF MONIES – PENALTY – Applicant (Ms Lin – employee) claimed required by first respondent (Ms Zhou – managing director) to pay $6,000 as premium for job opportunity – Applicant’s cousin’s husband (“C”) claimed loaned $6,000 to applicant and shortly afterwards applicant started work for second respondent (New Times Press Ltd – employer) – Authority found C’s evidence unreliable and gave little weight to evidence – Applicant provided facsimile from ASB which showed applicant transferred $6,000 to second respondent – First respondent claimed $6,000 transfer was for repayment of loan advanced to applicant before applicant started work for second respondent – Applicant claimed never met first respondent before working for second respondent – Found first respondent did not loan $6,000 to applicant – Found more probable than not applicant required to pay $6,000 as premium in order to secure employment at second respondent – Found applicant entitled to repayment of $6,000 from second respondent – Found particularly egregious action by respondents to exploit vulnerability of applicant given applicant’s age, inexperience and immigration status – $15,000 penalty appropriate – Applicant claimed required by first respondent to give money directly to first respondent for tax payments – Applicant pointed to withdrawals from bank account in support of claim – Found difficulty with applicant’s evidence that significant number of withdrawals from bank account – Found applicant’s production of document cast considerable doubt upon applicant’s allegations as document produced at late stage of investigation meeting and applicant’s explanation for late production not convincing – Found more probable than not document provided by applicant was fabrication – Found applicant not required to pay money to first respondent for tax purposes – Applicant claimed required by first respondent to pay $2,500 in advance each month for gross salary and then paid net salary – Authority inspected bank records available for each month of applicant’s employment – Applicant claimed given first respondent’s bank account details and told to ensure $2,500 payments continued while away for two months – Applicant provided bank statements which showed two $2,500 payments had been deposited into first respondent’s bank account – First respondent claimed applicant borrowed $5,000 and promised to repay loan while away – Found unlikely first respondent loaned $5,000 to applicant – Found applicant entitled to repayment of $5,000 from first respondent – $7,000 penalty appropriate – Found some indicators suggested applicant paid $2,500 each month to first respondent but lack of substantial evidence to substantiate overall claim – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably dismissed by respondent – Respondents claimed applicant abandoned employment – Applicant claimed could not cope with situation of having to pay employer money and so resigned – First respondent claimed informed by colleagues that applicant not showing up for work – First respondent claimed met with applicant and applicant did not talk about resignation – Applicant’s friend attended meeting and claimed applicant raised issue of not being able to pay respondents money – Second respondent editor-in-chief claimed applicant submitted work which lacked depth and stopped coming to work – First respondent claimed after meeting applicant still did not come to work – Found more probable than not applicant abandoned employment rather than resigned due to demands for payment of monies by first respondent – No dismissal – ARREARS OF HOLIDAY PAY – Applicant claimed entitled to unpaid holiday pay – Found lack of evidence in support of claim – Found appropriate for parties to attempt to resolve matter – Leave reserved if parties unable to settle matter – Journalist |
| Result | Applications granted (recovery of monies)(penalty) ; Recovery of monies ($6,000)(premium) ; Recovery of monies ($5,000)(salary) ; Penalty ($15,000)($10,000 payable to Crown)($5,000 payable to applicant) ; Penalty ($7,000)($4,000 payable to Crown)($3,000 payable to applicant) ; Arrears of holiday pay (quantum to be determined) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Recovery of Monies |
| Statutes | ERA s161(1)(m);ERA s135;ERA s135(2);ERA s136;Wages Protection Act 1983 s12(2);Wages Protection Act 1983 s12A;Wages Protection Act 1983 s12A(1);Wages Protection Act 1983 s13;Wages Protection Act 1983 s13(b) |
| Cases Cited | Sears v Attorney-General [1994] 2 ERNZ 39 |
| Number of Pages | 25 |
| PDF File Link: | 2012_NZERA_Auckland_43.pdf [pdf 130 KB] |