| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 404 |
| Hearing date | 17 Sep 2012 |
| Determination date | 16 November 2012 |
| Member | R Larmer |
| Representation | M Moncur ; Y Zheng (in person) ; B Wong (in person) |
| Location | Auckland |
| Parties | Zhou v Harbit International Ltd and Ors |
| Other Parties | Wong ; Zheng |
| Summary | RECOVERY OF MONIES – Applicant claimed paid first respondent $13,849 premium to secure and retain employment – Authority found first respondent received $13,849 premium in breach of s 12A(1) Wages Protection Act 1983 (“WPA”) – First respondent to pay applicant $13,849 recovery of monies – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Found applicant entitled to amounts claimed – First respondent to pay applicant $15,251 arrears of wages and $1,587 arrears of holiday pay – PENALTY – Applicant sought penalties for first respondent’s breach of WPA, failure to pay applicant’s wages and failure to keep or provide wage and time records – Found first respondent appeared to have exploited applicant because of applicant’s immigration status – $7,000 penalty appropriate for breach of WPA – $2,000 penalty appropriate for failure to pay wages – $5,000 penalty appropriate for failure to keep or provide wage and time records – UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by first respondent – Found applicant available to work but not contacted by first respondent – Found applicant dismissed – Dismissal unjustified – REMEDIES – No contributory conduct – First respondent to pay applicant $640 reimbursement of lost wages - $1,000 compensation appropriate – Chef |
| Abstract | Applicant employed by first respondent as chef. Applicant claimed paid first respondent $13,849 premium to secure and retain employment and sought penalties for first respondent’s breach of Wages Protection Act 1983 (“WPA”), failure to pay applicant’s wages and failure to keep or provide wage and time records. Applicant sought arrears of wages and holiday pay and claimed unjustifiably dismissed by first respondent. Applicant claimed when offered job asked by third respondent to provide $8,000 to help with business and felt had to pay money to secure employment. Applicant claimed second respondent subsequently asked for $5,000 as business facing hard trading conditions and indicated applicant could lose job and work visa if money not provided. Applicant’s girlfriend claimed withdrew money from bank account for applicant to give to second respondent. Second respondent denied asking for or receiving money from applicant. Two months later applicant claimed told that first respondent did not have money to pay applicant’s tax and asked to pay $849 PAYE. Applicant claimed not paid for first three months of employment and not paid fully thereafter. First respondent claimed initial period of applicant’s employment was unpaid training. Applicant claimed subsequently told to take time off and not to return to work until further notice. Applicant claimed did not hear anything and when returned to premises found business closed. Third respondent claimed attempted to contact applicant unsuccessfully.;AUTHORITY FOUND –;RECOVERY OF MONIES: No prior relationship between parties to explain initial payment of $8,000 and money paid by applicant to secure employment. Second respondent asked for $5,000 and money paid by applicant constituted illegal employment premium. Payment of own tax by applicant to secure on-going employment with first respondent. First respondent received $13,849 premium in breach of s 12A(1) WPA. First respondent to pay applicant $13,849 recovery of monies.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant entitled to amounts claimed. First respondent to pay applicant $15,251 arrears of wages and $1,587 arrears of holiday pay.;PENALTY: First respondent appeared to have exploited applicant because of applicant’s immigration status and penalty should act as deterrent to other employers. $7,000 penalty appropriate for breach of WPA. $2,000 penalty appropriate for failure to pay wages. First respondent did not keep wage and time records and failed to produce records upon request. $5,000 penalty appropriate for failure to keep or provide wage and time records.;UNJUSTIFIED DISMISSAL: Applicant available to work but not contacted by first respondent. Applicant dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. First respondent to pay applicant $640 reimbursement of lost wages. $1,000 compensation appropriate. |
| Result | Applications granted; Recovery of monies ($13,849.60); Arrears of wages ($15,251); Arrears of holiday pay ($1,587.40); Penalty – breach of Wages Protection Act 1983 ($3,000)(payable to applicant)($4,000)(payable to Crown); Penalty – failure to pay wages ($1,000)(payable to applicant)($1,000)(payable to Crown); Penalty – Failure to keep or provide wage and time records ($5,000)(payable to Crown); Reimbursement of lost wages ($640); Compensation for humiliation etc ($1,000); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(2);ERA s103A;ERA s103A(3);ERA s128(2);ERA s130;ERA s130(1);ERA s130(1)(a);ERA s130(1)(b);ERA s130(1)(c);ERA s130(1)(d);ERA s130(1)(e);ERA s130(1)(f);ERA s130(1)(g);ERA s130(1)(h);ERA s130(1)(i);ERA s130(2);ERA s130(4);ERA s134;ERA s134(1);ERA s135(2);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 |
| Cases Cited | Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015 |
| Number of Pages | 14 |
| PDF File Link: | 2012_NZERA_Auckland_404.pdf [pdf 214 KB] |