| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 24/09 |
| Hearing date | 11 Dec 2008 |
| Determination date | 29 January 2009 |
| Member | V Campbell |
| Representation | S Blick ; S Sharma |
| Location | Auckland |
| Parties | Yeleswaram (Labour Inspector) v Ramesh Lal t/a Glomax Super Tailors |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY – Applicant Labour Inspector claimed arrears for employee’s (“X”) five months wages – Respondent claimed X not employee – X worked for five months without work permit – X initially worked for one month trial period and then entered into employment agreement (“EA”) – EA provided wage below statutory minimum rate, nine hours per day, two 15 minute breaks and one 30 minute lunch - X obtained permit five months later and paid one week wages – Applicant repeatedly asked respondent to produce wage and time records to no avail – Applicant relied solely on X’s evidence in Authority investigation – Applicant opposed respondent producing records produced at investigation - Authority found X employed for five months in breach of visitors permit – Found X’s travel records, respondent’s knowledge of X’s quality of work and work habits showed X employee and protected under Employment Relations Act 2000 (“ERA”) – Employees working unlawfully in New Zealand entitled to protection of ERA and other employment related legislation – Authority found applicant’s claim as proved due to respondent’s failure to discharge burden under s132(2) ERA – Found applicant made requests for records to no avail – Found respondent notified failure to produce records would result in sole reliance on applicant’s evidence – Records may not be produced at investigation without parties’ consent or Authority’s leave if employee failed to comply with s232(1) ERA under s232(3) ERA – Noted applicant’s argument respondent had no incentive to keep records due to penalty contained in Immigration Act 1987 - Respondent ordered to pay applicant arrears of wages and holiday pay – PENALTY – Global penalty award for failure to keep and produce records, breach of Holidays Act 2003 and allowing X to work illegally – Machinist |
| Result | Application granted ; Arrears of wages ($9,638.23) ; Arrears of holiday pay ($578.29) ; Interest (6%) ; Penalty ($3,000)(Payable to Crown) ; Disbursement in favour of applicant ($70)(Filing fee) |
| Main Category | Arrears |
| Statutes | ERA s131;ERA s132(1);ERA s132(2);ERA s229(3);Holidays Act 2003 s75 |
| Cases Cited | Khan v Harun Ali Mod Fab, unreported, T. Woods, 16 September 2002, AA278/02 |
| Number of Pages | 7 |
| PDF File Link: | aa 24_09.pdf [pdf 34 KB] |