Fired worker stranded overseas wins $87k payout

Author
NZ Herald,
Section
Business,
Publish Date
Sunday, 7 July 2019, 12:47PM
The worker was left stranded at Hong Kong airport for 36 hours. (Photo / Getty)
The worker was left stranded at Hong Kong airport for 36 hours. (Photo / Getty)

A Wanaka worker who was blocked from returning to New Zealand and left stranded at Hong Kong Airport for 36 hours has won an $87,000 payout through the Employment Relations Authority (ERA).

In 2018, Ramesh Nath was working as a chef at Wanaka restaurant Spice Room. In March of that year, he applied for annual leave from April 9 to 11 July via email.

His employer Meetu Saklani, a director at Spice Room, approved the leave, and Nath subsequently booked a return plane ticket to visit India.

Nath told the ERA it was always his intention to return from India and that he did not say or do anything to suggest otherwise.

Despite Saklani approving Nath's leave, the Spice Room arrived at the conclusion that he was not coming back and hired a replacement chef.

The ERA said that the restaurant came to this view on the basis that Nath had not contacted it during his period of leave. Nath, however, said he was under no obligation to contact the restaurant, which already had the date of his return.

On July 9, Saklani received a phone call from a person who said they were from Immigration New Zealand (INZ).

The immigration official asked if Nath was employed at Spice Room, to which Saklani confirmed it did but that he "was not sure [Nath] was coming back".

At the time, Nath was at Hong Kong Airport seeking to board a plane to Auckland. Nath said the immigration official advised him that Saklani had said "we don't guarantee the job and I don't think he will be back". Spice Room denied this was the nature of the exchange with immigration, saying it had in fact told INZ it wanted him to return.

The inability to prove he had ongoing employment in New Zealand meant Nath was not allowed to board the plane to Auckland. His work permit was cancelled, and he then spent "a very miserable 36 hours" at Hong Kong airport before boarding a plane for India.

In addition to this issue, Nath also told the ERA that he had worked many additional hours without being paid.

Under the terms of his employment, Nath was guaranteed 30 hours per week over a 7-day cycle. In exchange for this, Nath was paid $36,900 per annum plus accommodation and food. The agreement did not specify the value of the accommodation and food.

Nath said that he worked between 50 to 60 hours per week for Spice Room but still only paid for 30 hours.

Nath provided calculations, setting out the extra hours he worked during his employment, coming to the conclusion that he was owed $54,238 in unpaid wages.

Spice Room did not keep wage and time records for Nath, but claimed that he didn't either. Spice Room provided payslips for Nath, but these simply reproduced the figure representing 30 hours per week.

Spice Room said Nath's annual salary based on a 30-hour week was above the minimum wage and it would require "a lot of extra hours before the minimum wage threshold is reached". Spice Room also told the ERA its employees "indirectly" pay for accommodation, electricity, gas and two meals per day, which it valued at "$300 per week", by "extra hours worked".

The restaurant also said that Wanaka was a holiday town, which meant that hours worked by staff above 35 to 40 a week varied, and that effective underpayments were offset on average by the value of accommodation and food.

Based on the evidence before it, the ERA determined that Spice Room unfairly dismissed Nath.

"Spice Room found it more convenient to employ another chef to replace Mr Nath than await his return," the ERA said.

"When Spice Room was contacted by INZ on or about 9 July 2018, the statements made on its behalf plainly and directly contributed to Mr Nath being denied boarding to New Zealand and having his work permit cancelled."

Due to his unfair loss of employment, the ERA ordered Spice Room to pay Nath $10,424 for three months' in lost wages.

The ERA also found in favour of Nath when it came to the issue of underpaid wages, ordering Spice Room to pay him the full amount of $54,238.

Nath was awarded a further $22,000 as compensation for the hurt, humiliation and injury to his feelings as a result of his experiences.

Spice Room is required to make the full payment of $86663.02 within 28 days of the determination being made.

Nath now resides in Canada.

 

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