The Employment Relations Authority has ordered an employer to pay over $86,000 in lost wages and compensation following a successful personal grievance for unjustified dismissal of an employee.

The employee had requested annual leave and had been given approval for that leave.  He had then travelled overseas on leave to visit family in his home country.  On his way back to New Zealand to resume work he was transitting in Hong Kong.  At that point Immigration New Zealand contacted the employer and asked whether he genuinely had a job in New Zealand.  The employer said that he was employed, but that they did not actually expect him to return to New Zealand.  There was no basis for the employer to say this as they knew the return date of the employee.

As a result of the employer’s comments Immigration New Zealand cancelled the employee’s Visa and he spent 36 hours at Hong Kong airport before having to return to his home country.

The ERA held that this was an unjustified dismissal, because the act of telling Immigration New Zealand it did not expect him back was not the action of a reasonable employer and resulted in the loss of his Visa and therefore was an unjustified dismissal. 

The employer argued that they thought he was not returning because he had not communicated to them during his period of annual leave.  The ERA held that there was no obligation to communicate during annual leave and that the employer already knew the employee’s return date.

The employee was awarded $10,400 lost wages resulting from the unjustified dismissal, plus $22,000 compensation for the hurt and humiliation he suffered. 

In addition the employee claimed $54,200 in short paid wages.  He claimed that he worked longer hours than what was provided in his employment contract, but was never paid for those hours.  The employer had failed to keep any wage and time records, so could not produce any evidence of the time the employee worked or the wages paid in relation to those hours.  This meant that the ERA is entitled to accept the calculations made by the employee as to time worked and wages missed out on and therefore the $54,200 was awarded for those underpaid wages.

It is very important to keep full wage and time records to show the hours worked and the wages paid.  If those records are not kept the employee’s calculations can be assumed to be correct.

Alan Knowsley
Employment Lawyer Wellington