| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 333 |
| Determination date | 24 October 2017 |
| Member | R Arthur |
| Representation | A Dumbleton ; M Kim |
| Location | Auckland |
| Parties | Labour Inspector v Gengy's Management Ltd & Ors |
| Other Parties | NZ Durham Ltd, NZ C & J Ltd |
| Summary | JURISDICTION – Whether Ms Kim employee or volunteer – PENALTY – Applicant sought penalty for respondents’ breaches of Minimum Wages Act 1983 and Holidays Act 2003 |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Ms Kim signed an employment agreement. Ms Kim performed tasks that were normally carried out by an employee. Ms Kim was an employee.;PENALTIES: Respondents underpaid employees. Breaches minor result of computational errors. Respondents agreed to pay underpayments. Breaches of Minimum Wages Act 1983 excluded from consideration of penalties. First respondent failed to pay six employees holiday pay on termination of employment and two employees for public holidays that would otherwise have been a working day. Second respondent failed to pay 27 employees holiday pay on termination of employment, 14 employees for public holidays that would otherwise have been a working day, 16 employees the prescribed rate of pay for work on a public holiday or provide 14 employees with an alternate holiday for working on a public holiday. Third respondent failed to pay 39 employees holiday pay on termination of employment, 28 employees for public holidays that would otherwise have been a working day, 42 employees the prescribed rate of pay for work on a public holiday or provide 39 employees with an alternate holiday for working on a public holiday. Breaches were not inadvertent and affected majority of employees. Mostly migrant employees. Respondents cooperated with Labour Inspector throughout investigation. Respondents acknowledged wrongdoing and devised repayment plan. Reduction of penalties appropriate due to financial constraints and respondents’ commitment to paying arrears. $6,000 penalty appropriate for first respondent. $15,000 penalty appropriate for second respondent. $78,000 penalty appropriate for third respondent. |
| Result | ERA s6 ; ERA s174E ; Holidays Act 2003 s23 ; Holidays Act 2003 s49 ; Holidays Act 2003 s50 ; Holidays Act 2003 s56 ; Holidays Act 2003 s75 ; Minimum Wages Act 1983 |
| Main Category | Penalty |
| Statutes | ERA s6 ; ERA s174E ; Holidays Act 2003 s23 ; Holidays Act 2003 s49 ; Holidays Act 2003 s50 ; Holidays Act 2003 s56 ; Holidays Act 2003 s75 ; Minimum Wages Act 1983 |
| Cases Cited | Borsboom v Preet PVT Ltd [2016] NZEmpC 143 |
| Number of Pages | 11 |
| PDF File Link: | 2017_NZERA_Auckland_333.pdf [pdf 250 KB] |