| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 35 |
| Hearing date | 27 Jan 2012 - 30 Jan 2012 (2 days) |
| Determination date | 12 April 2012 |
| Member | P R Stapp |
| Representation | W Huang (in person) ; G Ogilvie |
| Location | Wellington |
| Parties | Huang v Fei Li t/a Eland Internet Cafe and Games |
| Summary | JURISDICTION – Whether applicant employed by respondent - Respondent denied applicant commenced employment at respondent – Applicant’s visa application supported by employment offer from respondent – Employment agreement (“EA”) signed by both parties – Respondent denied applicant commenced employment two weeks after signed EA – Applicant had work visa - Respondent claimed applicant failed to provide work permit and Police clearance respondent needed before employment could commence – Respondent denied applicant left work visa at respondent premises - Respondent gave applicant key to premises and applicant opened respondent each morning – Respondent claimed gave applicant free internet access and applicant would do odd jobs and sometimes help customers in return – Witnesses claimed saw applicant at respondent when respondent director not present and applicant carried out chores and dealt with customers’ needs - Applicant began working for third party (“M”) – Applicant did not tell Immigration New Zealand (“INZ”) or respondent working for M – Authority found issues with parties’ evidence about parties' communication – Applicant told respondent INZ required respondent’s financial statements – Respondent discovered employment agreements and other correspondence sent to INZ – Both parties denied sent documents to INZ – Respondent claimed applicant had misled respondent - Respondent told applicant would not support application for permanent residency and requested applicant not come to premises – Applicant issued with Police warning after sent threatening text messages to respondent – Found applicant employed by respondent while parties waited for INZ documents to be completed - Applicant employed by respondent - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Found applicant entitled to arrears of wages and holiday pay for period worked – Respondent to pay applicant $19,440 arrears of wages and $1,555 arrears of holiday pay – UNJUSTIFIED DISMISSAL – Dismissal - Applicant claimed unjustifiably dismissed by respondent when asked not to come to premises – Found fair and reasonable employer would not have concluded applicant could not be trusted without investigation – Found applicant did not have reasonable opportunity to give respondent explanation and decision predetermined – Dismissal unjustified – REMEDIES – 30 per cent contributory conduct - Found applicant uncommunicative and evasive on some matters – Found applicant had duty to show respondent work visa – Found reinstatement not practicable nor reasonable – Found applicant did not mitigate losses - $2,419 reimbursement of lost wages - $2,450 compensation appropriate – IT Support and Computer Technician |
| Result | Applications granted ; Contributory conduct (30%) ; Reimbursement of lost wages ($2,419.20) ; Compensation for humiliation etc ($2,450) ; Arrears of wages ($19,440) ; Arrears of holiday pay ($1,555.20) No order for costs ; Disbursements in favour of applicant ($378.22)(filing and hearing fees) |
| Main Category | Jurisdiction |
| Statutes | ERA s103A;ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d) |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Wellington_35.pdf [pdf 46 KB] |