| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 160 |
| Hearing date | 21-Mar-17 |
| Determination date | 01 June 2017 |
| Member | R Larmer |
| Representation | N Santesso ; B Arolkar |
| Location | Auckland |
| Parties | Nayak v Urban Turban New Zealand Ltd |
| Summary | PENALTY - Applicant sought penalty for breaches of Minimum Wage Act 1983 and breach of employment agreement - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay |
| Abstract | AUTHORITY FOUND -;PENALTY: Applicant failed to keep time and wage records. Applicant’s evidence on salary paid and hours worked accepted. Applicant paid less than minimum wage. Respondent unilaterally reduced applicant’s hours of work below minimum amount specified in employment agreement. Holiday Act breaches deliberate and on-going. Migrant worker affected. Penalty clause highly aggravating factor. Respondent gained unfair advantage over competitors. $30,000 penalty appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant paid less than minimum wage. Quantum for failure to pay minimum wage to be determined. Respondent unilaterally reduced applicant’s hours of work. Applicant entitled to be paid per contractual hours of work. Respondent to pay applicant $10,333 arrears of wages. Respondent to pay applicant $9,679 arrears of holiday pay. |
| Result | Applications granted ; Arrears of wages ($10,333.30) ; Arrears of holiday pay ($9679.76) ; Penalty ($20,000)(applicant)($10,000)(crown) ; Costs reserved |
| Main Category | Penalty |
| Statutes | ERA s130 ; ERA s130(1)(g) ; ERA s131 ; ERA s132(1) ; ERA s132(2) ; ERA s133A ; ERA s135(2)(a) ; Holidays Act 2003 s13(1)(b) ; Holidays Act 2003 s24 ; Holidays Act 2003 s25 ; Holidays Act 2003 s28 ; Holidays Act 2003 s40(3) ; Holidays Act 2003 s49 ; Holidays Act 2003 s60 ; Holidays Act 2003 s68 ; Holidays Act 2003 s68(1A) ; Holidays Act 2003 s75(1)(b) ; Minimum Wage Act 1983 s10(1) ; Wages Protection Act 1983 s12A ; Wages Protection Act s13(1)(b) |
| Cases Cited | Borsboom v Preet PVT Ltd [2016] NZEmpC 143 |
| Number of Pages | 19 |
| PDF File Link: | 2017_NZERA_Auckland_160.pdf [pdf 285 KB] |