Your rights: Driven out of his job

By CHRIS PATTERSON

Q. My son was forced to leave his job after being assaulted by his employer on two occasions, which was reported to the police. He had been in his job for 11 months. At first he was being paid under the minimum legal rate of $8 an hour, and has not received any back pay as yet.

His employer wanted to put him on a contract but my son wanted a couple of things changed in it. Then, over one week, he was assaulted and abused by his employer and told to look for another job. My son left as he didn't want to end up in hospital.

My son didn't sign anything. One minute he was employed on an hourly rate, then a day rate, then as a contractor, then back to hourly.

His employer deducted money from my son to pay another employee. We have kept all the payslips as they show that he was working a 40-hour week and was also getting six per cent holiday pay each week, which I thought was illegal.

We have tried the employment relations service, which told my son that he could not take a personal grievance - this was told over the phone to him during a call that lasted all of two seconds.

A. Your son's employer should have provided him with a proposed written employment agreement before he commenced employment. He should have been told that he could obtain advice and be given reasonable time to consider the proposed agreement. The employer has breached the Employment Relations Act in failing to do so and could be liable to a penalty.

The Minimum Wage Act, as the name suggests, sets out minimum wage entitlements. Your son is probably entitled to seek recovery of the difference between what he was paid and the current applicable minimum wage rate. His employer is also potentially liable to pay a penalty for failing to comply with the Act.

There is probably little you or your son can do in respect of the assaults if the police are still handling your son's complaints. However, if the police have decided not to charge your son's employer then he may have a claim based on the employer's failure to provide a safe workplace. He could also bring a private prosecution, although I suspect that is not a practical option.

Your son's resignation may amount to an unjustified (constructive) dismissal. He would probably be entitled to say that he was forced to resign for many of the matters you have identified.

However, the most serious issue is that of the assaults. It would be fair to say that no one should feel that they are compelled to continue working when their employer has assaulted and abused them.

I suggest that your son contact the Department of Labour's labour inspectors and lay a complaint regarding the employer's noncompliance with the Minimum Wage Act. A labour inspector can recover any money owing and prosecute the employer free of charge.

In respect to your son's resignation he should write to his employer raising a personal grievance. He should seek professional assistance.

* Chris Patterson is a barrister specialising in employment law.

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