| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 211A/10 |
| Hearing date | 31 May 2010 - 3 Jun 2010 (4 days) |
| Determination date | 15 July 2010 |
| Member | R Arthur |
| Representation | B Murray ; K Jones, G Bevan |
| Location | Auckland |
| Parties | Singh and Anor v JR Hospitality Ltd (in liquidation) and Ors |
| Other Parties | Singh, CG Hospitality Ltd, Bolliwood Ltd, JJ Hospitality Ltd (previously Vedana Ltd), Chahil |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicants brought to New Zealand to work in respondents’ restaurants – Investigation postponed for more than two years because of criminal trial involving director of respondent companies – Following resignation, applicants claimed director and others assaulted and held them against will – Whether what happened after resignation amounted to constructive dismissal – Director and employees faced charges of kidnapping and aggravated wounding against applicants – Authority found events following resignation occurred outside employment relationship – Found matter dealt with in criminal jurisdiction – No dismissal – ARREARS OF WAGES AND HOLIDAY PAY – Applicants sought unpaid wages and holiday pay – Authority found respondents’ documentary evidence regarding working hours and payments incomplete – Applicants claimed worked long hours unpaid and documents produced by respondents fabrications or signed without understanding contents – Respondents argued applicants understood and agreed costs of legal fees for immigration applications and airfares to New Zealand would be deducted from wages – Found respondents’ evidence less credible than applicants’ – However, found applicants exaggerated span of hours worked and gave no notice upon resignation – Found employment agreements did not record agreement to reimburse respondents for recruitment and importing costs – Found respondents not entitled to deduct costs – Respondents argued difference in take home pay due to money kept on trust for applicants – Found money not returned to applicants upon resignation – Found tax not paid at correct rate – Found applicants previously told during argument could leave if wanted to – Found notice requirement waived – Found respondents not entitled to deduct notice period from wages due – Found respondents incurred no additional costs or damages as result of immediate resignation – Postponement of investigation meeting granted on basis respondents provided $80,000 as security if orders made – Security transferred to Department of Labour to be held in interest bearing account as previous nominated solicitor acted as respondents’ commercial solicitor and witness in criminal trial – Liquidators did not consent to Authority making order for payment from security sum – Authority found payment would have already been made before company placed in liquidation but for postponement to meet demands of justice – Found repugnant to justice to deny applicants access to security sum – Department of Labour Finance Treasury Officer ordered to make payment of arrears – Found residual amount to be disbursed – Found wages and holiday pay due and owing – Interest payable – Applicants to account for income tax owing on wages and holiday pay – PENALTY – Applicants sought penalties for withheld wages and holiday pay – Found breaches of statutory obligations as to wages and holiday pay deliberate – Found harm caused to applicants by reducing income which they could remit to families – $3,000 penalty appropriate – Cook |
| Result | Application dismissed (unjustified dismissal) ; Application granted (arrears of wages and holiday pay) (penalty) ; Arrears of wages and holiday pay ($33,443)(AS) ($26,289)(BS) ; Interest (5.2%) ; Penalty ($3,000)(AS) ($3,000)(BS) |
| Main Category | Arrears |
| Statutes | ERA s135;ERA s136;ERA s157(1);ERA s157(3);ERA s160(2);ERA s174;ERA Second Schedule cl11;Holidays Act 2003;Wages Protection Act 1983 |
| Cases Cited | Singh and Anor v W Ltd and Ors unreported, R Arthur, 5 May 2010, AA 211/10;Singh and Anor v W Ltd and Ors unreported, R Arthur, 28 February 2008, AA 65A/08;Singh and Anor v W Ltd and Ors unreported, R Arthur, 6 March 2008, AA 65A/08;Singh & Ors v The Queen [2010] NZCA 244 |
| Number of Pages | 20 |
| PDF File Link: | aa 211a_10.pdf [pdf 59 KB] |