| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 173 |
| Determination date | 05 November 2014 |
| Member | C Hickey |
| Representation | P Cheyne ; P Rea |
| Location | Christchurch |
| Parties | Nguyen and Anor v Hue Kim Thi Ta t/a Little Saigon Restaurant |
| Summary | UNJUSTIFIED DISMISSAL - Serious misconduct - Applicants claimed unjustifiably dismissed by respondent - Migrant workers - Applicants failed to wash tablecloths before going on holiday - Whether dismissed or abandoned employment - ARREARS OF WAGES AND HOLIDAY PAY - Applicants sought arrears of wages and holiday pay - Applicants not paid wages - Second applicant worked for respondent over four year period - Agreement between applicant's mother and respondent that applicants would work to pay off mother's debt - Money deducted for accomodation - Whether respondent required to pay applicant for close down periods following Christchurch earthquakes - PENALTY - Applicants sought penalties for respondent's failure to pay minimum wage and failure to provide time and wage records - Cooks |
| Abstract | AUTHORITY FOUND -UNJUSTIFIED DISMISSAL: Applicants dismissed. Action of not cleaning tablecloths not serious misconduct. Arguable whether agreement to wash tablecloths part of employment as opposed to informal family arrangement. Not reasonable to require applicants to wash tablecloths in own time. No opportunity for explanation. Procedural defects not minor. Not fair and reasonable. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay first applicant $327 and second applicant $327 reimbursement of lost wages. $6,000 compensation appropriate for first applicant and $8,000 compensation appropriate for second applicant.;ARREARS OF WAGES AND HOLIDAY PAY - Respondent failed to keep and provide time and wage records. Applicants claims accepted as proven. Agreement with applicants' mother had no effect on employment relationship. Some doubt over credibility of second applicant's evidence but more doubt over respondent's credibility. Respondent received subsidy for first six weeks of close down following earthquake. Applicant entitled to be paid for six weeks of close down period but not entitled to payment for remaining close down period. Deduction for accommodation not provided for in parties employment agreement. Respondent not entitled to deduct monies. Respondent to pay first applicant $6,519 arrears of wages and $521 arrears of holiday pay. Respondent to pay second applicant $150,026 arrears of wages and $12,002 arrears of holiday pay. Interest payable.;PENALTY: Respondent failed to pay correct wages and failed to provide time and wage records. Global penalty appropriate. $5,000 penalty appropriate. |
| Result | Applications granted; Reimbursement of lost wages ($327.50)(first applicant) ($327.50)(second applicant); Compensation for humiliation etc ($6,000)(first applicant) ($8,000)(second applicant); Arrears of wages ($6,519.66)(first applicant) ($150,026.99)(second applicant); Arrears of holiday pay ($521.27)(first applicant) ($12,002.16)(second applicant); Interest (5%); Penalty ($5,000)($1,000 payable to first applicant)($4,000 payable to second applicant); Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s3(a)(ii);ERA s103A;ERA s103A(3);ERA s103A(5);ERA s124;ERA s128;ERA s128(2);ERA s130;ERA s131;ERA s132;ERA s133;ERA s135(2)(a);ERA s136;ERA s174;Holidays Act 2003 s23;Judicature Act 1908 s87(3);Judicature Act 1908 Second Schedule cl11;Minimum Wage Act 1983;Minimum Wage Act 1983 s7;Wages Protection Act 1983 s4;Wages Protection Act 1983 s5 |
| Cases Cited | Feeney, Labour Inspector v BY Ltd, t/a Viz Cafe [2014] NZERA Auckland 208;Tan v Yang [2014] NZEmpC 65 |
| Number of Pages | 27 |
| PDF File Link: | 2014_NZERA_Christchurch_173.pdf [pdf 321 KB] |