Anup Gautam has been awarded $43,984.78 in remedies after the ERA heard his complaint. Photo / 123rf
Anup Gautam has been awarded $43,984.78 in remedies after the ERA heard his complaint. Photo / 123rf
An immigrant employee working on a restricted visa was underpaid 12 hours a week for three years and told he would be fired if he complained.
But Anup Gautam did complain and he has now been awarded $43,984.78 in remedies after the Employment Relations Authority (ERA) ruled in his favour.
Gautam was employed by Wellington-based Repair Plus Limited as an information and communication technology (ICT) technician from May 2018 to August 2021.
After leaving, he turned to the ERA with a claim he had been underpaid 12 hours every week for the duration of his contract.
He said he had worked 47 hours each week but was only paid for 35 hours. He also submitted he was owed unpaid annual holidays, alternate holidays and for public holidays he had worked.
In the decision released this month, authority member Rowan Anderson noted the initial reluctance of Lin (Kevin) Lu, sole director of Repair Plus, to engage in the process.
Lu first missed a case management conference in June 2022, despite being given notice, claiming he was busy. He later contacted the authority and advised he wanted to lodge a response to Gautam’s statement of problem.
IT technician Anup Gautam was awarded $43,984.78 compensation by the ERA after he was underpaid 12 hours a week for more than three years. Photo / 123RF
Anderson directed the parties to mediation, with their agreement, at a subsequent conference in September, and provided a revised date for statements or additional information to be lodged if negotiations were unsuccessful.
While Gautam supplied a statement of evidence, Repair Plus again failed to provide relevant information by the deadline.
The authority emailed Lu in November, noting no information had been received and advising an investigation meeting set for later that month would proceed as scheduled.
After again failing to appear, Lu later provided a short response to the issues raised by Gautam, who then replied to the submissions.
The authority was provided with Gautam’s individual employment agreement (IEA), dated March 2018, showing he would work a 35-hour week and his gross annual salary would be $37,620 or $723.46 per week.
When Gautam began his employment he only held a restricted visa, and he claimed the company exploited the situation by making him work additional hours without pay under the threat of dismissal.
“Mr Gautam’s evidence was that when he took issue with the arrangement with Mr Lu he was told that if he wanted to be paid for the additional hours then he would be asked to leave,” the decision states.
Wage and time records were requested from Lu but a complete copy of the data was not provided, and Gautam argued the failure prejudiced his ability to calculate what he was owed.
Repair Plus didn’t challenge the hours Gautam claimed he worked and never provided proof he was wrong.
Lu provided written material making various claims after the investigation meeting, including Gautam requesting payment be made for a 35-hour week to meet his immigration requirements and to ensure he was paid a minimum wage of $19.90.
Lu also argued there were in fact two IEAs signed, claiming the one Gautam gave the authority was signed for immigration purposes only, but he was not able to produce the other.
He also contended Gautam never complained during his employment, had initially offered to work for nothing and was paid more than he requested, but Anderson said it didn’t absolve the company of its responsibilities.
“Such assertions do not justify the failure to make correct payment of wages, nor do they excuse Repair Plus from its relevant obligations under the IEA.”
Anderson accepted Gautam’s claim he worked 47 hours a week but was only paid for 35 and consequentially was entitled to an additional payment of $240.04 gross per week for the duration of his employment, totalling $35,079.45.
Compensation of $4857.45 was made for five weeks’ annual leave owing to him at the time he left and a further award of $4047.88 was made for 25 public holidays he worked during his employment.
When contacted by the Herald, Lu claimed he hadn’t received a copy of the decision and when advised of the ERA’s ruling, he declined to comment.
