Migrant loses grievance case against employer

Jacqueline Sydow. Photo / Paul Estcourt

A woman has lost a case in which she claimed her employer asked her to pay her own taxes and wages to support her residency application.

Jacqueline Sydow, an immigrant from South Africa, was ruled by the Employment Relations Authority to have no case against her employer, Executive Recruiters International.

The authority found that Ms Sydow was not dismissed by her employer and that she did not have a case for personal grievance.

The authority also found that Pierre Le Noel, whom she accused of blackmailing her into working for nothing, was not her employer and therefore had no liability as a party to her employment contract.

Ms Sydow had taken Mr Le Noel to the authority for allegedly making her obtain New Zealand permanent residency by fraudulent means.

She was offered a $55,000 job on November 14, 2008, but within a week of starting work on January 19 last year was given a new contract dated January 18 which said she would be paid only on a commission basis.

Ms Sydow obtained a work permit with her initial job offer, and believed an entirely commission-based contract would not meet the qualifying criteria for a permanent residence application.

The authority found the employer had unilaterally varied the original terms and conditions.

"There was a serious breach of the employment agreement ... in January 2009, when Mr Le Noel imposed the January 18 remuneration terms on Ms Sydow without obtaining her consent," said authority member Alastair Dumbleton in his judgment. However, he also said Mr Le Noel had been trying to forestall redundancy during the recession. And he said of "critical importance" to the determination of the claim was "the subsequent conduct of the parties" between January and August.

"In that time Mr Le Noel was given no reason by Ms Sydow to believe that she had not accepted the January 18 terms under which she received her remuneration," he said.

"Ms Sydow worked on without protest or objection to those terms ... although initially in January 2009 she had expressed her dissatisfaction ... there was then a five-or-more-month period in which she did nothing to suggest she had not accepted the terms and conditions which provided for her remuneration to be on a commission-only basis."

Mr Dumbleton said he found that Ms Sydow had resigned freely, although unhappily, and did not have a claim of constructive dismissal.

"There was no attempt by ERI to coerce Ms Sydow's resignation.

"Although there was, I have found, a breach by the employer of the employment agreement in January 2009, no remedyhas been sought by way of penaltyagainst the employer ERI, or against Mr Le Noel."