| Summary |
UNJUSTIFIED DISMISSAL – ARREARS OF WAGES - RECOVERY OF MONIES – Applicant claimed unjustifiably dismissed, received no wages, and sought reimbursement of expenses for alleged overseas business travel in China and permanent residency application - Respondent argued helped applicant obtain permanent residency and that parties agreed employment conditional on applicant bringing business from China to respondent – Respondent argued condition not set out in employment agreement (“EA”) due to Immigration requirements – Applicant claimed incurred costs on marketing trip to China sourcing potential clients for respondent – Respondent argued applicant not employee at time of trip, and offer of employment only possible if applicant generated business in China – Applicant claimed not aware of condition – Respondent argued when applicant in New Zealand (“NZ”), visits to office were erratic – Applicant denied respondent’s allegation applicant operating own business – Respondent did not wish to continue to hold out to Immigration that intended to employ applicant in knowledge had no income to pay wages – Respondent advised applicant that not “to proceed further with employment” and stating no wages or monies owing as employment never commenced – Authority found respondent made offer of employment – Found start date to be when applicant granted permanent residency – Found permanent residency never granted so condition of employment never satisfied – Found when applicant travelled to China, was not employee of respondent – Found Authority had no jurisdiction to determine expenses allegedly incurred – Found understood by parties at time of entering into EA that respondent did not have income to pay applicant unless obtained business from China – Found applicant accepted employment on that basis - Authority found evidence did not go as far as respondent’s submission applicant misrepresented could obtain business from China – Found respondent discontinued employment relationship as could not afford to employ applicant in absence of business opportunities from China – Found fairness required respondent advise applicant of matter formally, and reasons behind it, before termination of employment – Found applicant also entitled to support person at meeting – Found applicant’s immigration consultant not support person – Found at least part of reason for dismissal was suspicion applicant operating own business and had divided loyalties - Found suspicion was serious allegation not properly put to applicant or investigated before dismissal – Found decision predetermined and applicant did not have proper opportunity to persuade respondent regarding future employment – Authority accepted respondent could not afford to employ applicant and termination of employment inevitable – However, procedure not fair and reasonable – Dismissal unjustified – REMEDIES – Found no contributory conduct – Found unclear what work applicant performed in NZ, nor time taken to undertake it – Found one week’s wages fair and reasonable award for work performed – Found almost inevitable applicant’s employment terminated because respondent could not continue to hold out to Immigration that applicant employed when no funds to pay wages – Found applicant entitled to compensation for manner of dismissal not loss of job itself - $1,500 compensation appropriate - Authority found applicant not entitled to reimbursement for work performed in China as not employee at time – Found applicant not entitled to recovery of expenses applicant incurred in permanent residency application, as respondent could not show Immigration that could afford to employ applicant for residency purposes anyway – COSTS – Applicant sought costs – Authority found applicant only entitled to filing fee as represented self - Environmental Resources Manager |