An Auckland restaurant has been ordered to pay more than $218,000 after underpaying a migrant worker for almost two years.
Originally from China, Chenming Sun arrived in New Zealand in 2017 and was employed as a chef by Happytime BBQ Restaurant Ltd in Auckland.
A recent Employment Relations Authority (ERA) determination said Sun’s travel to New Zealand and employment at the restaurant were arranged by Happytime’s sole director, Ayang Song.
As part of the arrangements, Song required Sun to pay a “refundable deposit” of $16,563, which he did before starting work in October 2017.
He did not sign an employment agreement until March 2018. Under the agreement, Sun was to be paid $22 an hour and work 40 hours over five days.
At the time of his employment, Happytime traded as Hehe Barbeque in Central Auckland. Sun worked at the restaurant until April 12, 2019, when he sent a text to Song ending his employment.
Translated the text read, “Sister Yang, consider the issue from my side, I am stopping to go to work, no wages for half year is quite a big impact to me, I left my family and come to here is not an easy thing, I can’t bear this being dragged on, I apologise to you about this.”
Sun asked Song to refund his “deposit” of $16,563, but the money was not repaid. A few weeks later he complained to the Labour Inspectorate
An investigation found Sun usually worked 60 hours a week in the restaurant, which opened seven days a week.
He was not paid at all in some fortnights and underpaid in others, with his wages falling below the minimum wage of $15.75.
The inspector concluded Sun had been underpaid $37,600.65 over 19 months. Song also admitted to the inspector that she had spent Sun’s “deposit” and not refunded it when his employment ended.
Happytime had also failed to comply with multiple other employment standards, including requiring Sun to work on public holidays without being paid time and a half or receiving a day in lieu.
The inspector found Sun was owed $927.50 for hours worked on public holidays and $1855 for alternative days off. The restaurant was closed on four public holidays, for which Sun was underpaid $817.50.
Sun was also owed $7740.13 for annual holidays.
In total, the inspector found Sun was owed $65,503.78 including the “refundable deposit”, which he concluded was an illegal premium.
At an investigation meeting with the ERA, Song offered no defence. She was given four weeks to make any submissions against penalties and claims for amounts owed to Sun but did not reply.
In his decision, authority member Alastair Dumbleton said Happytime and Song had taken advantage of Sun’s weaker position as a migrant worker.
“This was exploitative behaviour carried out deliberately and which injured the dignity of Chenming Sun in the circumstances where he had travelled from the other side of the world for the chance to improve his life,” he said.
“He was effectively held to ransom because he had natural ambitions to advance the quality of his life and that of his family remaining in China.
“He was fearful of reporting his employer to the Labour Inspectorate in case he lost his job and with it his right to work and live in New Zealand. That trap is liable to be used to advantage by an unscrupulous employer of a migrant worker.”
Dumbleton said Happytime and Song should not be given any credit for their last-minute acceptance of liability.
“They have needlessly wasted an Inspector’s valuable time and prolonged the humiliation and ordeal of Chenming Sun.”
Happytime was ordered to pay $65,503.78 (plus interest) in outstanding wages and other payments owed to Sun. The company was also fined $102,000, of which $10,000 would be paid to Sun.
Song was also ordered to pay a $51,000 penalty, with $5000 of that to be paid to Sun.
– This story originally appeared on Stuff.co.nz
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