Corazon Miller is a NZ Herald reporter

Bakery owners fined after failing to comply with ERA ruling

The employee had been working at the bakery between February 2013 and February 2014, according to the ERA determination document. Photo/Supplied
The employee had been working at the bakery between February 2013 and February 2014, according to the ERA determination document. Photo/Supplied

The Employment Court has fined the owners of a Te Kuiti bakery and café, who failed to pay wages owed to a Filipino migrant worker. Worker's Advocate Nathan Santesso spoke on behalf of the worker, Josue Domingo, and welcomed the ruling ordering a $11,000 fine.

Being paid what was due would give his client a chance to visit his family in the Philippines, including a daughter he hadn't seen in three years, Santesso said.

He hoped the ruling would send a clear message that employers should respect and comply with the authorities and take care of those they employ, in particular migrant workers.

"If you abuse someone with such vulnerabilities, it is likely to aggravate penalties and fines should they be imposed."

The ruling came almost a year on from an Employment Relations Authority determination ordering the owners of Town and Country Foods, Meng Suon and Ngan Heng, to pay Domingo $7944.40 in unpaid wages, holiday pay and public holiday pay.

According to the ERA determination document in May last year, Domingo had been working at the bakery between February 2013 and February 2014.

Domingo claimed he'd worked in excess of this without additional pay and had not been paid holiday or public holiday pay. His former employer, Heng told the authority the extra hours were to off-set the costs of his food and board.

However, the ERA ruled in Domingo's favour as there was "no evidence the parties had reached an agreement about the value of the food and board" and highlighted Section 7 of the Wages Protection Act 1983 which stated wages must be paid in money.

It ordered this to be paid within 28 days of the determination, dated May 31, 2016.

However, Domingo was not paid and through his advocate the case was taken to the Employment Court where a hearing was held on February 15.

In the judgement document, dated Tuesday, Judge Christina Inglis acknowledged Heng and Suon hoped to offset costs by seeking what they felt they were owed in board and lodging.

However, she said this couldn't be sued for as the basis for non-compliance with an order of the authority.

"An express or implied arrangement to provide some hours 'gratis' to compensate for board and lodging does not preclude the employee from recovering unpaid wages."

She ruled that a breach of the compliance was serious and that the defendant had failed to take any steps to meet obligations.

"[The bakery] has simply asserted that it does not owe Mr Domingo the money ordered against it because of what he is said to owe it. As I have said, the Authority rejected this argument and the defendant did not challenge the Authority's determination."

She said the non-compliance had an acute impact on Domingo who "was and is in a vulnerable position as a migrant worker, isolated from support networks with English as a second language and with a limited understanding of the applicable legal framework".

Inglis said because the money was unpaid, Domingo was unable to fund a trip back to the Philippines to see his children.

"He was obliged to borrow money from his sister. He has been struggling to pay that money back because the defendant continues to fail to meet its liabilities. This has been an ongoing source of embarrassment."

The judge said to deter further breaches and to encourage early compliance she concluded it was appropriate for a sanction to be imposed and the defendant fined $11,000; 60 per cent of which would go to Domingo.

- NZ Herald

Get the news delivered straight to your inbox

Receive the day’s news, sport and entertainment in our daily email newsletter

SIGN UP NOW

© Copyright 2017, NZME. Publishing Limited

Assembled by: (static) on production apcf03 at 27 May 2017 08:39:38 Processing Time: 787ms