After turning to the Employment Relations Authority (ERA), Son gave oral and written evidence detailing how he had become exhausted while working a lot of additional hours delivering materials daily to a project site in Rotorua at the time he was sacked.
“Mr Son said he asked why his employment was being ended, but Mr Kim told him only to leave and to leave behind the company car he was using that day,” the determination, released this month, stated.
Not long after starting with YNK, Son had been asked to work weekends and agreed as his visa was dependent on his employment. He also worked public holidays without receiving penal rates or a day in lieu.
He had considered resigning but was concerned about his visa status and believed his dismissal was due to his protests about the extra hours he was working.
Son claimed he was owed his final wages, the four weeks’ notice he was entitled to, accrued annual leave, and that he wasn’t correctly paid for working public holidays.
It was also alleged YNK Limited breached the statutory requirements by failing to keep wage, time, holiday and leave records and neglected the duty of care it owed Son as an employee.
Following the investigation meeting, ERA member Eleanor Robinson ruled YNK had breached its obligation to act in good faith toward Son.
“I note that his evidence was that he worked diligently, undertaking extensive travelling and weekend and public holiday work.
“YNK in return was expected to pay him correctly and on time. This it failed to do.”
Penalties for breaches were set at a maximum of $20,000 per incident and YNK had clocked up six, she noted.
“They are not imposed to remedy the applicant’s loss, but to punish the person who has breached a duty under the Act and to condemn that behaviour.”
In calculating the overall penalty, Robinson reduced the number of breaches to four but took into account aggravating factors, including that Son was a migrant worker who was entitled to be treated with respect.
“I consider that there is a need to enforce to employers the employment standards they are required to meet and that minimum entitlements are non-negotiable.
“Mr Son is a vulnerable employee, dependent on YNK for his visa and wishes to apply for residence in New Zealand. As such I find that there is a need for particular deterrence for YNK.”
Robinson imposed a $40,000 penalty, $36,000 to be paid to the Crown and $4000 to Son, with YNK and Bae jointly liable.
YNK and Bae did not attend the investigation meeting and Robinson found there was no good cause for the non-appearance, as they had been served with notice, so proceeded without them.
Robinson awarded Son $3445.66 for his final pay, $4307.08 in lieu of four weeks’ notice, $2779.60 for accrued annual leave, and $2907.27 for working nine public holidays.
She ordered interest be calculated on the total amount of $13,439.61 to be paid to Son, with YNK and Bae jointly responsible for the debt.
Son was also awarded $2250 towards his legal costs.
