ERA orders massage business at Westfield St Lukes to pay masseuse $13,000

Body Haven St Lukes. Photo / Supplied.

A massage business operating at St Luke's mall has been ordered to pay more than $13,000 for employment breaches to a masseuse who had complained about unjustifiable dismissal and being sexually abused.

The masseuse, Jing Shen, was working at Oriental Natural Healthy Ltd, which trades under the name of Body Haven at the Auckland Mall.

The Employment Relations Authority (ERA) upheld parts of her claim including for arrears of wages, holiday pay and for humiliation, loss of dignity and injury to feelings.

Shen, a NZ permanent resident, started work at Body Haven after responding to an advertisement by the company for a part-time masseur.

She had assumed she was being engaged as an employee and claimed she had not been told that she was a contractor as claimed by the company.

As she had no previous masseur experience, Shen was required to undergo a period of unpaid training by other masseurs and also performing small tasks such as helping with reception and providing items to the other masseurs.

Shen started work on May 14, 2019, and received her first payment of $170.94 on June 13 after clocking in a total of 198.5 hours. Thereafter she received payment on a weekly basis with amounts varying between $270 and $499.02.

Although she did not understand why the amounts varied each week, Shen said she did not question the company's then managing director, Zengli Shen, who is now deceased.

Shen also claimed that the late Zengli Shen had sexually harassed her in the work place, making crude jokes using sexually explicit language and during a car trip to a colleague's home for a barbecue, used profane language which made her feel uncomfortable.

It was found during the authority's investigation meeting that comments had not been directed to Shen personally.

On August 28, Zengli Shen, accompanied by shop manager Jan Jiang, asked Shen to come outside the premises, handed her a letter and told her that her employment was over.

"Base on the present business operation situation, it's needed to reduce the number of (our) staff members," the letter said.

"I think you are not the type of staff members that we would hire for ta long term for the continuing development of this shop."

Zengli Shen was the sole director of Body Haven until he died in October 2, 2019. His wife Xinyu Huang is now the company's sole director and shareholder.

ERA member Eleanor Robinson determined that Shen was an employee working for the company and not a contractor.

She ruled that Shen was unjustifiably dismissed and disadvantaged in her employment by not having a written employment agreement.

Robinson said Shen was entitled to be paid the relevant minimum wage for all hours worked once the unpaid period of training was completed, and that the company had also failed to pay holiday pay.

However, Shen's claim of sexual harassment was not upheld.

Oriental Natural Healthy Ltd was ordered to pay $9346.65 for lost wages and arrears, and $981.9 for holiday pay entitlement.

The authority also awarded Shen $3000 for humiliation, loss of dignity and injury to feelings.

The company also was penalised $150 each for failure to provide a written employment agreement, pay wages at the minimum wage rate and failure to pay holiday pay.