A Wellington painter was dismissed after he refused to work unpaid overtime on a job he was accused of completing poorly.
A Wellington painter was dismissed after he refused to work unpaid overtime on a job he was accused of completing poorly.
A painter accused of poor workmanship was ordered by his boss to fix a job on his day off and without pay. When the migrant worker refused, he was fired.
Now, the paint and decorating business has been ordered to pay the man, who was “devastated” by hissudden loss of employment, more than $30,000 in remedies.
In March 2023, he was tasked with painting a block of seven units, but the client was not happy with the finished product and refused to pay Jono Decorators for the job.
Jonathan Murillo, its sole director, asked Ilano to return to the site and complete the job to the customer’s satisfaction but without pay. Ilano agreed.
Then, on March 22, Murillo sent a text message to Ilano, whose work visa was tied to Jono Decorators, stating that his employment would end on March 31.
The following day, Murillo phoned Ilano and asked him to do further unpaid work on the same job outside his normal hours.
Murillo told him he would not continue to pay him and that Ilano should not return to work, ending their employment relationship.
He did not pay Ilano for the 73 hours he had already worked that fortnight.
Ilano brought claims to the ERA against his former employer for unjustified dismissal, unpaid wages, unpaid holiday pay, unpaid taxes, and compensation for lost wages and hurt and humiliation.
Jono Decorators resisted the claims, saying that Ilano’s “poor workmanship” cost the company money.
“Mr Murillo was very upset that the client did not pay him for the job and said that, because the client did not pay, he had no obligation to keep paying Mr Ilano,” the decision stated.
But other painters had also worked on that job and there was no indication of why Murillo blamed Ilano for the alleged poor workmanship or the client’s decision not to pay, it said.
Ilano did not accept the criticisms of his work, which were not supported by any evidence.
“Mr Ilano says that he was the most experienced painter and, as a result, Mr Murillo often blamed or attributed other employees’ poorer work to him.”
Ilano told the ERA he felt “stressed, shocked, and angry” by his sudden dismissal, which left him short of almost two weeks’ wages.
“He had to rely on his savings to support himself and his girlfriend, and he had been carefully building up his savings so that he could buy plane tickets for his mother and father to visit him, as he had not seen them in some time.”
Ilano sought more work and started a new job about five weeks later.
After considering the evidence, the ERA found Murillo did not sufficiently investigate the allegations against Ilano before dismissing him.
Painter Enrique Ilano took his case to the Employment Relations Authority.
He also did not give Ilano a reasonable opportunity to respond to the allegations of poor workmanship before dismissing him, or genuinely consider Ilano’s responses.
“Instead Mr Murillo made it clear, both at the time and in the investigation meeting, that he had decided that Mr Ilano was to perform significant additional unpaid work on the seven units and, if Mr Ilano was not willing to do this, then Mr Ilano would be dismissed.”
The ERA did not accept that Ilano was dismissed solely because of the job that went wrong.
“Rather, he was dismissed at least in part because Mr Murillo had formed the view that [Ilano’s] agreed hourly rate was too high, and Mr Murillo was looking for ways to reduce this cost to the business.”
The ERA also noted that, as an employee, Ilano was not responsible for the ups and downs of business experienced by his employer.
“It is up to the company and to Mr Murillo to manage business risk, and this is not something that can lawfully be passed on to the employee as Mr Murillo has sought to do.”
In finding that Ilano was unjustifiably dismissed, the ERA ordered Jono Decorators to pay him $30,394 in remedies, which included $20,000 compensation for hurt, humiliation and injury to feelings.
Murillo told NZME he did not agree with the decision, reiterating his belief that Ilano had cost his business money.
However, he planned to pay Ilano the remedies ordered and hoped he could do so in instalments.
“At the moment, my business doesn’t have the money to pay the full amount.”
Tara Shaskey joined NZME in 2022 as a news director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff, covering crime and justice, arts and entertainment, and Māori issues.
