The company paid overtime in cash at a discount - then couldn't prove what it owed
A bricklayer has been awarded nearly $58,000 after his employer ran a dual payment system - part payroll, part cash-in-hand - that left him thousands of dollars short.
The Employment Relations Authority determination, issued on October 29, found that Aubricks New Zealand Limited owed the worker $52,717.84 in unpaid wages and statutory entitlements, plus $4,000 in compensation and $1,200 in unreimbursed expenses.
The worker was employed as a bricklayer on commercial construction sites from January 2023 to March 2025. His employment agreement set his rate at $28 per hour with a guaranteed minimum of 160 hours per month. He regularly exceeded that minimum.
Here's where it got complicated. Aubricks paid approximately 160 hours per month through its payroll in the usual way, with PAYE deducted and payslips issued. Any hours above that were paid in cash at $25 per hour - no payslips, no PAYE, no record on the books.
A company director explained that Aubricks sourced the cash through arrangements with other businesses. Those businesses would invoice Aubricks and then hand over cash, which Aubricks used to pay employees. The $3-per-hour gap between the contractual rate and the cash rate, the director said, reflected the cost of running the arrangement.
None of that changed the employment agreement. It still required $28 an hour, for every hour. No variation was ever established.
When the relationship ended in March 2025, the worker lodged what New Zealand employment law calls a personal grievance - essentially, a formal claim that his employer had breached its obligations. He said Aubricks owed him arrears across the board: ordinary wages, public holidays, sick leave, bereavement leave, annual holidays. He also claimed the company's conduct had forced his resignation, amounting to constructive dismissal.
Aubricks pushed back. It said the worker had been paid what he was owed, apart from a small balance it had already identified. It denied agreeing to an ongoing team-leader bonus the worker also claimed, and said he had resigned voluntarily. Then, in closing submissions - after the investigation meeting had already wrapped - Aubricks lobbed in counterclaims totalling more than $53,000 for the worker's alleged retention of a company vehicle and tools, plus $6,048 for failing to give four weeks' notice.
The records problem did the heavy lifting
The Authority's starting point was Aubricks's recordkeeping - or the lack of it. New Zealand law requires employers to keep accurate wages and time records. When they don't, and that failure makes it harder for the employee to bring an accurate claim, the Authority can accept the employee's version unless the employer proves it wrong.
The worker had kept handwritten timesheets throughout his employment, logging start and finish times daily. Aubricks produced monthly summaries that didn't break down daily hours or adequately capture the cash payments.
The Authority found the recordkeeping failures materially prejudiced the worker's ability to establish his entitlements. From that point, the onus fell on Aubricks to disprove the worker's figures.
Both sides ultimately agreed the worker had clocked 6,012.5 ordinary hours. At $28 per hour, that came to $168,350 gross. Aubricks had paid $99,096 through payroll and $37,548 in cash - leaving $31,706 in ordinary wages still outstanding.
The gap only widened from there. The Authority found Aubricks had underpaid public holidays worked and not worked, failed to pay alternative holidays, shorted the worker on sick leave taken while caring for his seriously ill mother in China, underpaid bereavement leave after her death, and miscalculated annual holidays by excluding the cash-paid hours from its Holidays Act calculations.
A director accepted that Aubricks had left cash earnings out of annual holiday calculations. The Authority confirmed that was wrong as a matter of law - cash payments were still part of gross earnings for holiday purposes, regardless of how they were delivered.
The total shortfall across all categories came to $52,717.84.
Aubricks also tried to deduct $3,770 for accommodation and $186 for a Site Safe training card. The Authority rejected both. Under the Wages Protection Act, a general deductions clause in an employment agreement doesn't authorise a specific deduction unless the employer has consulted the employee first. Aubricks hadn't.
Not everything went the worker's way
His claim for a $42,000 team-leader bonus was denied. While the Authority accepted he had performed some team-leader duties, and Aubricks had made two $2,000 payments early in the employment, that didn't establish an ongoing contractual entitlement. Two payments weren't enough to prove a standing agreement.
The constructive dismissal claim also failed. The Authority accepted the worker had been repeatedly underpaid and had grown increasingly dissatisfied, and that he hadn't secured alternative employment before resigning. But his participation in the cash arrangement over a substantial period, and the nature of his departure, didn't meet the legal threshold. He had decided to end the relationship. That was a resignation, not a dismissal.
The contribution question
This is where the case gets particularly interesting for HR teams. The Authority found Aubricks had unjustifiably disadvantaged the worker - meaning its actions fell below what a fair and reasonable employer would have done, and the worker suffered real consequences as a result. The off-books cash system, the recordkeeping failures, the incorrect statutory calculations. That entitled the worker to compensation.
But the worker wasn't entirely blameless. The Authority found he had knowingly participated in the cash arrangement over an extended period, understood the payments were being made outside ordinary payroll and tax arrangements, and perceived an immediate financial advantage in receiving $25 per hour without deductions - even at a lower nominal rate than his $28 contractual rate.
That participation helped sustain the very arrangement that formed part of his grievance. The Authority reduced his $5,000 compensation award by 20%, bringing it to $4,000. Aubricks devised, administered, and controlled the arrangement, so its responsibility was substantially greater - but the worker's knowing participation warranted some reduction.
The reduction applied only to the compensation award. It did not touch the $52,717.84 in wage and entitlement arrears, which arose independently as contractual and statutory obligations.
Notably, the Authority addressed the Employment Relations Amendment Act 2026, which introduced new restrictions on contribution-based remedy reductions from February 21, 2026. Because the worker's grievance arose in 2025, before those amendments took effect, the earlier law applied. The new provisions did not reach back to affect this case.
The counterclaims that went nowhere
Aubricks's late-stage counterclaims - $53,200 for alleged vehicle rental losses (alternatively $92,400), plus $6,048 for notice period - were declined. The Authority found they had been advanced in closing submissions without being properly developed or tested during the investigation. In any case, the evidence didn't support them. Correspondence showed Aubricks knew where the vehicle was and had been asked to collect it.
Aubricks was ordered to pay $57,917.84 in total - $52,717.84 in arrears, $4,000 in compensation, and $1,200 in fuel reimbursement - within 28 days.
For HR professionals, the case is a practical reminder that off-books payment arrangements don't just create tax problems - they unravel an employer's entire entitlements framework when they reach a tribunal, because the missing records shift the onus of proof squarely onto the employer.
