February 7, 2011

You never worked weekends – and the dog ate the payslips!

NZ Herald link: Cafe cheated worker of pay

The existence of this article raises some interesting questions. When the reporter rang me I realised that my intention to keep everything about all my client’s business confidential was about to be tested.

When a client comes to me with a problem, it is easy to keep the matter confidential right up until the time it goes before the ERA. Since 90% of my cases are resolved before an ERA hearing (called an Investigation Meeting), confidentiality is always part of the settlement, and rarely causes any difficulties or problems.

But once things go before the Authority (ERA), they are like Court proceedings and the hearings are open and the decisions (called Determinations) are public, and available to the press.

This was the second time that a reporter had followed up a favorable decision of the ERA on one of my cases, but previously the reporter concerned had gone straight to my client. This time they had come to me.

I had been intending to post about this case on the website in the usual way -with names and details changed to protect the privacy of the client, but since Determinations of the ERA are public documents and they named not only my client, but also me as her representative, strict confidentiality had already gone out the window. I told the reporter I didn’t want to comment and that I would advise my client not to, but she went ahead anyway and got comment from the employer.

So I can say something about it – but only based on the Determination.

The case was huge – not for the money, but for the amount of time and volume and complexity of the evidence. The café claimed my client started 3 months after she actually did and worked only 20 hrs per week (paid by cheque and accounted for through IRD) – but in fact she was working long hours and they were treating her like all the other workers and paying the bulk of the wages in cash. They told her they were paying the IRD the tax they deducted but they were actually pocketing it. They kept falsified wages and time records accordingly, but these records were clearly nonsense and not even internally consistent.

When push came to shove, the Cafe produced their other workers as witnesses. They gave sworn evidence that the Authority found “unsatisfactory” that they themselves had only worked limited hours, and that my client had worked only 20 hours per week and that no one had ever been paid in cash.
I am not surprised that the Authority found for my client. Her witnesses were consistent and straightforward, and her case was bolstered by a huge amount of documentary evidence.

The Little Turkish Café are threatening to appeal to the Employment Court, but I don’t ultimately think they will. I think they know that their witnesses will still be “unsatisfactory”, and my client’s 15cm file of documents will be just as convincing in the Employment Court.

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