Employer to pay $50,000 after exploiting migrant worker…

The Employment Relations Authority has upheld an employee’s personal grievance claims of unjustified dismissal and unjustified disadvantage, ordering an employer to pay almost $50,000 in compensation and penalties.

The employee was recruited in China by an agent of the employer. The employee helped the employer become an accredited employer in New Zealand under the Accredited Employer Work Visa scheme.

The employee had a brief interview with the agent before he signed an employment agreement. He flew to New Zealand but was never given any work, nor was he paid under his contract.

The employer soon told the employee that they had no work for him, and that he should find another job. The employee raised personal grievance claims of unjustified dismissal and disadvantage with the Authority.

The Authority first had to consider whether the employee was in fact an employee of the employer, given he had not done any work for them. This required looking at whether he was “…a person who had been offered, and accepted, work as an employee”. 

The Authority concluded that the employee had been offered and signed an individual employment agreement, for 40 hours per week. He had therefore been offered and accepted work as an employee and could legally work for the employer. He was therefore an employee.

The next issue was whether the employee had been unjustifiably disadvantaged.

The employee was never given any work by the employer, despite requesting multiple times. The Authority considered that there was no written agreement reducing the employee’s hours from the contracted 40 hours per week to zero hours. No work was provided to him.

The Authority considered that this unjustifiably disadvantaged the employee, causing him significant financial hardship.

The Authority then considered whether the employee was unjustifiably dismissed. It considered that the unilateral decrease in the employee’s hours was essentially a dismissal.

No dismissal process was followed by the employer. The employee was merely told to look for other work, and that he would receive one month’s pay. The Authority concluded that this dismissal was both substantively and procedurally unjustified.

The Authority ordered the employer to pay three months of the employee’s salary, amounting to $13,800. The employer was further ordered to pay $20,000 in compensation to the employee for hurt, humiliation and loss of dignity, as well as a $10,000 penalty.

The employer was also ordered to pay $4,270 for the employee’s contractual notice.

This case is yet another example of no proper process being followed by an employer when dismissing an employee.