Stephanie Nguyen won $35,000 from her former employer in a case before the Employment Relations Authority after she was underpaid and unjustifiably dismissed. Photo / Supplied
Stephanie Nguyen won $35,000 from her former employer in a case before the Employment Relations Authority after she was underpaid and unjustifiably dismissed. Photo / Supplied
A migrant worker who had to bring her preschool son to work at night at a nail salon but was not paid for the overtime has been awarded more than $35,000.
Stephanie Nguyen was underpaid and unjustifiably dismissed by her employer, the Employment Relations Authority [ERA] said in a Decemberdetermination.
The Vietnamese woman began working at Royal Nail Spa in Cambridge, owned by Tiffany Nails and Beauty, in early June 2019.
She was not paid for the first 36 hours she worked because her employer, Tiffany Cao, said Nguyen was not officially recruited and was only observing.
However, ERA member Leon Robinson said Nguyen, 39, was given a casual contract at the time and he considered her employed from that point.
From mid-June Nguyen was paid $245 in cash each week for seven weeks, totalling $1645, but told the ERA she wasn’t being paid the minimum wage of $17.70.
She told the authority she was pressured to sign the employment agreement at a lower hourly rate.
“She says she was not confident enough to approach Ms Cao because (from a cultural perspective) she believed it was inappropriate for her to be questioning Ms Cao who was her superior,” Robinson said in his determination.
From mid-September 2019 Nguyen began working 50-plus hours a week and from November that year she was directed to work longer hours to keep up with demand at the salon.
“She was told to collect her son from daycare and then return to work until closing,” Robinson said. “I accept that Ms Nguyen believed this to be a temporary situation and complied.”
The Royal Nail Spa in Cambridge, run by Tiffany Nails and Beauty. A migrant worker was underpaid and unjustifiably dismissed from there. Photo / GoogleMaps
On one occasion Nguyen’s son ran out on to the main street of Cambridge and she had to chase after him after being alerted by a customer.
From mid-December, the salon’s hours were extended. On five days Nguyen did not leave until after 7.30pm, but she said she was not paid extra.
“Ms Nguyen says the additional hours she was working were placing stress on her [her husband worked out of town]. As a result, she felt stressed and extremely undervalued as an employee.”
On December 21 Nguyen asked that her hours return to normal to which Cao, who is also Vietnamese, agreed by text message.
In June the following year, Cao told Nguyen her uncle had deported one of his staff members back to Vietnam because she had stolen an item from his shop.
She said the staff member deported was on the same type of work visa as Nguyen, who realised she was being challenged by Cao and texted her asking why she had told her that story.
“Ms Cao responded that if she had done nothing wrong then she should not be worried. Ms Nguyen says this confused and upset her considerably,” Robinson wrote.
A week later Cao texted Nguyen after work and without any consultation said that in two weeks the salon could offer her only two days’ work per week, and then it would be quiet for a couple of months, but the salon would keep in contact.
“As a result, Ms Nguyen felt she had no other option but to leave the employment as she needed more work to support her family.
“From her perspective, she had been working six days every week on a full-time basis for approximately seven months. She texted Ms Cao asking if she could leave the employment immediately without notice. Ms Cao agreed.”
Robinson said Cao’s actions amounted to a “serious breach of both the duty not to do anything calculated or likely to destroy the relationship of trust and confidence and the duty of good faith” and that Nguyen left as a direct consequence.
He said it was not what a fair and reasonable employer would have done and amounted to unjustified dismissal.
He ordered Cao to pay wage arrears for overtime, unpaid statutory holidays, and accrued leave, totalling $14,209, plus $3477 in lost wages while Nguyen was between jobs.
Robinson then imposed financial penalties for the breaches including $15,000 for hurt and humiliation, loss of dignity, and injury to feelings as a result of the unjustifiable dismissal.
For failing to act in good faith, retain a signed copy of Nguyen’s employment agreement, properly keep a wage and time record, pay the correct adult minimum wage, pay accrued but untaken leave on termination, and pay holiday pay, Cao was also fined $5000, with $2500 to go to Nguyen and $2500 to the Crown.
Cao sought name suppression of her salon claiming publication would cause her mental distress and mean she could not take care of her young children.
But Robinson declined the application, saying he was not persuaded there was “some specific identifiable harm that is sufficient to properly outweigh the public interest in open justice considerations”.
Nguyen told NZME she had not received the $35,187 yet and worried there was no guarantee she would get it.
She was only able to challenge Cao through the ERA after help from a client who explained her treatment was not legal.
Cao told NZME through tears that the experience had been a hard lesson to learn, that her poor English hindered her as an employer, and she felt the outcome was unfair.
