Your rights: Seek more legal advice

By JOHN HANNAN of Phillips Fox

Q. I previously left a salaried position where the hours I worked left me earning much less than the minimum wage. My boss often complained if I took a morning or afternoon break, however, I was working more than 10 hours a day and really needed these.

I don't feel that the employer was fair in describing the position when I applied for the job, and gave me a lot of extra responsibility once there.

I was also required to use my own transport, for which I was not reimbursed fairly.

The general manager has offered to be my referee. However, when I received a reference in the mail all it said was I worked at the company from this date to that date.

I'm not sure if it is such a good idea to use this person as a referee. I do not have a lot of work experience. What is the best way around this?

I am doing temp work at the moment so I can pay my bills. Would prospective full-time employers view a temporary employer as a suitable referee?

A. Your employment agreement should have clearly stated your standard hours of work. If it did not, your employer was in breach of the requirements of the Employment Relations Act 2000 (ERA) and you may have grounds to bring a personal grievance against your old employer.

People in salaried positions often work more than their standard hours of work. But in your case this has led to you earning less (on an hourly rate) than the minimum wage. So you clearly worked unreasonable hours. If your employer required you to do this you may have a "wage arrears" claim for the extra hours you worked. You can seek a Labour Inspector's assistance in recovering any unpaid wages to which you are entitled.

Your former employer should have reimbursed you for any reasonable vehicle expenses you incurred while conducting the company's business. You should make a claim for reimbursement.

Your former employer also had an obligation to provide you with a safe work environment. Arguably, by discouraging you from taking reasonable breaks your boss placed your health in danger. You may have a case for claiming constructive dismissal.

Constructive dismissal occurs when an employer's unwarranted actions leaves the employee with no alternative than to resign. You should seek legal advice on these issues.

No employer is obligated to provide a reference for any employee. What you have received is known as a "certificate of service".

You could ask for a fuller reference and if your former employer is not willing you could try to find out why not and then decide whether it is worth using this person as a referee. However, with limited work experience it would be good to try to get a more detailed reference from your last employer. Full-time employers are likely to view a temp employer as a suitable referee - especially in the absence of any other referees.

Employment Relations Service

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