| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 367 |
| Hearing date | 26 Sep 2012 |
| Determination date | 15 October 2012 |
| Member | A Fitzgibbon |
| Representation | M Moncur ; no appearance |
| Location | Auckland |
| Parties | Tian v South Pacific Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by respondent - Authority found respondent did not give applicant reasons for dismissal or tell applicant directly employment terminated – Found respondent’s dismissal process disgraceful - Dismissal unjustified – REMEDIES - No contributory conduct -$10,000 compensation appropriate – RECOVERY OF MONIES – PENALTY – Applicant claimed paid respondent premium for employment - Found respondent director received $33,510 premium in breach of s 12A(1) Wages Protection Act 1983 - Respondent ordered to repay $33,510 to applicant – Found respondent’s actions particularly egregious as exploited applicant’s vulnerability due to age, inexperience and immigration status - $10,000 penalty appropriate – ARREARS OF WAGES AND HOLIDAY PAY – PENALTY – Applicant sought arrears of wages and holiday pay and penalty - Found applicant underpaid from commencement of employment - Respondent to pay applicant $12,400 arrears of wages and $1,455 arrears of holiday pay - Found applicant out of time to recover penalty - No penalty – GOOD FAITH – PENALTY – Applicant claimed respondent failed to provide written employment agreement (“EA”) and respondent breached good faith obligations – Found respondent’s conduct breached respondent’s good faith obligations towards applicant and respondent took advantage of applicant’s vulnerability - $5,000 penalty appropriate – Found respondent failed to provide applicant with written EA but no penalty could be awarded as application not brought by labour inspector – COSTS – Half day investigation meeting - Respondent to pay applicant $1,750 contribution towards costs |
| Abstract | Applicant claimed unjustifiably dismissed by respondent. Applicant claimed paid respondent $33,510 premium to secure and retain employment, sought arrears of wages and holiday pay, claimed respondent failed to provide EA and respondent breached good faith obligations. Applicant sought applicable penalties. No appearance for respondent. Applicant Chinese citizen seeking employment in New Zealand and permanent residency. Applicant’s acquaintance (“Y”) told applicant could secure employment with respondent if made $27,000 payment to respondent. Applicant, Y and immigration agent met respondent director (“G”). Parties agreed applicant would pay G $27,000 to secure employment, applicant would be employed on three month trial period and initially paid $200 per week. Applicant only paid $300 each fortnight but claimed did not raise matter with G during trial period as did not want to jeopardise employment. G refused to increase applicant’s wages after trial period ended. After applicant told G PAYE not being deducted from applicant’s wages, G agreed to deduct PAYE from wages on condition applicant reimburse respondent PAYE amount. Over three month period applicant paid wages by cheques, banked cheque but then respondent required applicant to withdraw same amount in cash and reimburse respondent. Applicant had accident at work and took two days’ leave. Respondent employee told applicant G had told staff at staff meeting applicant’s employment terminated. Applicant told G shocked by termination and requested reimbursement of $27,000. G told applicant matter with respondent’s lawyers. G made no further contact with applicant;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent served with notice of investigation meeting and appropriate for Authority to investigate matter in respondent’s absence. Applicant’s employment terminated when G made announcement at staff meeting. G’s actions not those of fair and reasonable employer. Respondent did not give applicant reasons for dismissal or tell applicant directly employment terminated. Respondent’s dismissal process disgraceful. Dismissal unjustified. REMEDIES: No contributory conduct. $10,000 compensation appropriate.;RECOVERY OF MONIES - PENALTY: Applicant effectively paid respondent to keep employing applicant. Applicant paid respondent $33,510 to secure and retain employment. G received $33,510 premium in breach of s 12A(1) Wages Protection Act 1983. Respondent ordered to repay $33,510 to applicant. Respondent’s actions particularly egregious as exploited applicant’s vulnerability due to age, inexperience and immigration status. Penalty should reflect seriousness of respondent’s unlawful actions. $10,000 penalty appropriate.;ARREARS OF WAGES AND HOLIDAY PAY – PENALTY: Applicant underpaid from commencement of employment and applicant did not agree to underpayment. Respondent to pay applicant $12,400 arrears of wages and $1,455 arrears of holiday pay. Applicant out of time to recover penalty. No penalty.;GOOD FAITH - PENALTY: Respondent’s conduct breached respondent’s good faith obligations towards applicant and respondent took advantage of applicant’s vulnerability. Respondent’s breach of good faith obligations deliberate, serious and sustained. Award of penalty at level close to maximum appropriate however respondent already penalised for other aspects of conduct. $5,000 penalty appropriate. Respondent failed to provide applicant with written EA. However no penalty could be awarded as application not brought by labour inspector. No penalty.;COSTS: Half day investigation meeting. Respondent to pay applicant $1,750 contribution towards costs. |
| Result | Applications granted (unjustified dismissal, recovery of monies, penalty – recovery of monies, arrears of wages and holiday pay and good faith - penalty) ; Compensation for humiliation etc ($10,000) ; Recovery of monies ($33,510) ; Penalty – recovery of monies ($5,000)(payable to Crown) ($5,000)(payable to applicant) ; Arrears of wages ($12,400) ; Arrears of holiday pay ($1,455.20) ; Penalty – good faith ($2,000)(payable to Crown) ; $3,000(payable to applicant) ; Applications dismissed (penalty – arrears of wages and holiday pay and penalty – failure to provide employment agreement) ; Costs in favour of applicant ($1,750) ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4A;ERA s65;ERA s65(4);ERA s103A;ERA s103A(2);ERA s135(1)(b);ERA s135(2);ERA s135(5);ERA s136;ERA s161(1)(m)(v);Wages Protection Act 1983 s12A;Wages Protection Act 1983 s12A(1);Wages Protection Act 1983 s12A(2);Wages Protection Act 1983 s13;Wages Protection Act 1983 s13(b) |
| Cases Cited | Waikato District Health board v The New Zealand Public Service Association Inc [2008] ERNZ 80 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Auckland_367.pdf [pdf 191 KB] |