| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 427/09 |
| Hearing date | 2 Sep 2009 - 3 Sep 2009 (2 days) |
| Determination date | 30 November 2009 |
| Member | M Urlich |
| Representation | V Naidu ; V Raman |
| Location | Auckland |
| Parties | Patel & Anor v Patel & Ors |
| Other Parties | Patel ; Patel, Deval Enterprises Ltd |
| Summary | JURISDICTION – Translator assisted investigation - Respondents argued applicants volunteers not employees – Applicants claimed recently immigrated with young children and entered agreement to work in respondents’ store at rate of $11.50 per hour, with free accommodation in respondents’ home – Respondents argued no such agreement – Respondents argued offered temporary accommodation to applicants as courtesy, and applicants voluntarily attended workplaces several times – Authority found evidence showed recurring pattern of applicants travelling to workplace; applicants given name badges and uniforms; second applicant received letter on business letterhead confirming status as “appointed for customer-service full time job”; applicants well known to and recognised by customers; respondents’ diary recorded three cash payments made to first applicant; and respondents provided accommodation to applicants without requiring payment – Found respondents’ counterarguments not credible – Applicants employees not volunteers - Authority rejected respondents’ argument applicants could not have employment relationship with respondents as not entitled to work in New Zealand and no IRD number at time - PRACTICE AND PROCEDURE – Identity of employer – Authority found proper employer second respondent company (“D”), not first respondents personally – Found D was legal entity held out as employer in second applicant’s letter and owned business from which cash payments made to first applicant - ARREARS OF WAGES – Authority found hourly rate agreed by parties fell below $12 minimum wage level – Found unlawful to pay less than minimum wage – Found no evidence provision of board and lodging to be deducted from hourly rate – D to pay first applicant byway of wage arrears calculated at $12 per hour at 20 hours per week for period of employment, less sums already paid – D to pay second applicant byway of wage arrears calculated at $12 per hour at 40 hours per week for period of employment - ARREARS OF HOLIDAY PAY – Applicants entitled to holiday pay on wage arrears – Interest payable on wage and holiday pay arrears - RAISING PERSONAL GRIEVANCE – Authority found personal grievances not raised within 90 day time limit – Found D failed to maintain number of significant obligations including providing no written employment agreement (“EA”) – Found amounted to exceptional circumstance and just to grant leave to raise grievances out of time – Mediation ordered - PENALTY – Applicants sought penalties for failure to provide written EA, opportunity to seek independent legal advice, provide fair working conditions and to maintain wage and time records – Authority found D offered no reasonable explanation for and continued to deny employment obligations in face of clear evidence - Found breached obligations wilfully and deliberately – $2,000 penalty warranted, payable to Crown and applicants jointly - Shop assistants |
| Result | Applications granted ; Arrears of wages (quantum to be determined) ; Arrears of holiday pay (quantum to be determined) ; Interest (4.79%) ; Penalty ($2,000)(payable to applicants and Crown jointly) ; Orders made ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s6(1)(c);ERA s63A(2);ERA s114(4);ERA s115(c);ERA s130(4);ERA s131;Minimum Wage Act 1983 s6 |
| Number of Pages | 7 |
| PDF File Link: | aa 427_09.pdf [pdf 22 KB] |