| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 208 |
| Hearing date | 19 Feb 2013 - 4 Apr 2013 (2 days) |
| Determination date | 23 May 2013 |
| Member | J Crichton |
| Representation | J Ding ; W Tan (in person) |
| Location | Auckland |
| Parties | Yang and Anor v Tan |
| Other Parties | Zhang |
| Summary | RECOVERY OF MONIES – Applicants claimed paid respondent $7,000 premium to secure employment for applicants’ daughter (“L”) – Authority found no evidence to suggest receipt issued to applicants anything but genuine – Found exchanges between respondent and applicants’ son (“B”) confirmed respondent had been paid – Found respondent paid $7,000 by applicants – Found applicants clear were paying for job for L, receipt for money referred to job offer and exchanges between respondent and B concerned with job offer – Found payment from applicants to respondent in exchange for provision of job for L – Respondent to pay applicants $7,000 recovery of monies – PENALTY – Applicants sought penalty for respondent’s breach of Wages Protection Act 1983 (“WPA”) – Found respondent’s breach of WPA egregious – $3,500 penalty appropriate |
| Abstract | Applicants claimed paid respondent $7,000 premium to secure employment for applicants’ daughter (“L”) and sought penalty for respondent’s breach of Wages Protection Act 1983 (“WPA”). Applicants wanted to bring L to New Zealand. Respondent agreed to help L with immigration status and offer L employment in respondent’s restaurant. Applicants claimed respondent would only offer L employment if paid $14,000. Applicants claimed paid respondent $7,000 and received receipt. Applicants claimed respondent demanded balance of money owing but respondent claimed was seeking payment of fees for immigration work associated with obtaining permanent residence for L. Respondent denied received any payment, denied receipt genuine and denied offered to provide employment to L in exchange for payment. Respondent claimed exchanges with applicants’ son (“B”) consistent with respondent not receiving any money and events attempt to extort money from respondent. Applicants’ initial proceedings in Disputes Tribunal dismissed.;AUTHORITY FOUND –;RECOVERY OF MONIES: Difficult to understand why applicants would prosecute case through Disputes Tribunal and Authority if no payment made to respondent. No evidence to suggest receipt anything but genuine. Exchanges between respondent and B confirmed respondent had been paid as exchanges consistent with agreement between respondent and B that respondent would repay money when job offer to L withdrawn. Respondent uncooperative during investigation meeting and evidence of respondent’s witness no money paid in witness’ presence did not discount possibility respondent paid when witness not present. Respondent paid $7,000 by applicants. No evidence to support respondent’s claim events part of attempt to extort money from respondent. Applicants clear were paying for job for L, receipt for money referred to job offer and exchanges between respondent and B concerned with job offer. Such facts inconsistent with respondent’s claim sought payment as immigration consultant, rather than in return for offering job to L. Payment from applicants to respondent in exchange for provision of job for L. Respondent to pay applicants $7,000 recovery of monies.;PENALTY: Respondent’s breach of WPA egregious as took advantage of vulnerable elderly couple. $3,500 penalty appropriate. |
| Result | Applications granted ; Recovery of monies ($7,000) ; Penalty ($3,500)(payable to applicants) ; Costs reserved |
| Main Category | Recovery of Monies |
| Statutes | Wages Protection Act 1983;Wages Protection Act 1983 s12A;Wages Protection Act 1983 s12A(1);Wages Protection Act 1983 s13 |
| Number of Pages | 9 |
| PDF File Link: | 2013_NZERA_Auckland_208.pdf [pdf 172 KB] |