Director faces personal liability as employer fails to meet basic obligations
An employer's failure to honour its most fundamental employment obligations has cost it more than $32,000, the Employment Relations Authority ruled on 5 March 2026.
Yang (Helen) Feng arrived in New Zealand on 2 December 2023 to begin work as a construction worker for Auckland-based Dong Construction Limited, which at the time held Accredited Employer status under Immigration New Zealand's Accredited Employer Work Visa scheme. It has since lost that status. She left on 12 March 2024 having never worked a single day or received a cent.
Ms Feng, a former make-up artist with no construction experience, was offered the role via a WeChat video call on 10 October 2023 with Dong Wang, the company's sole director. Mr Wang said the 90-day trial period provision in her agreement gave the company confidence to hire someone without a construction background. No written offer followed the call. The company passed Ms Feng's Individual Employment Agreement (IEA) and a job token to her China-based agent, Xitian (Cici) Huang, so that she could submit them as part of Ms Feng's visa application to Immigration New Zealand. Ms Huang then failed to pass the full IEA on to Ms Feng. Ms Feng only received and signed four pages of the document — the signature page, the employee acknowledgement clause, and two schedules. Those pages did not include the trial period clause or a motor vehicle clause requiring her to hold a valid New Zealand driver's licence.
The Authority found that Dong Construction was obliged to provide Ms Feng with work and wages from 8 January 2024, a start date both parties had agreed upon after she recovered from illness following her arrival. The company withheld work on the basis that she lacked a driver's licence. That reasoning was rejected. The licence requirement was "not a term or condition of employment that she had been aware of or had agreed to before she arrived in New Zealand." Ms Feng asked Mr Wang for work at least three times, but none was provided.
Because Ms Feng was never given the full IEA, the trial period provision was also deemed invalid. The clause had been lawfully included, as Ms Feng's application predated the 29 October 2023 rule change that barred Accredited Employers from using trial periods for AEWV employees. It was, however, never communicated to her, rendering it unenforceable.
The Authority found Dong Construction had constructively dismissed Ms Feng, concluding that "the initiative for ending her employment came from her employer, not from her." The company had breached both her employment agreement and its good faith obligations.
Ms Feng had also alleged she paid RMB 100,000 to a contact named Yan Liu as a premium for securing the job. The Authority found she could not prove on the balance of probabilities that the respondents had sought or received that money. Those claims did not succeed.
Dong Construction was ordered to pay Ms Feng $32,299.70, comprising $8,008.20 in wage arrears, $3,559.20 in notice pay, $925.39 in holiday pay, $1,306.91 in interest, and $18,500 in distress compensation. No award was made for lost remuneration, as Ms Feng provided no evidence of seeking alternative work after returning to China.
Mr Wang was personally ordered to pay a $500 penalty to the Crown for aiding and abetting the company's breaches. Dong Construction was separately ordered to pay a $1,000 penalty. Significantly, Ms Feng was also granted leave to recover from Mr Wang personally any amounts that Dong Construction defaults on paying her.
The case carries clear implications. Employment agreements must be delivered in full to the employee — not filtered through third parties who may pass on only selected pages. Trial period clauses are only enforceable when properly communicated before the role begins. And withholding work from a willing employee on grounds that were never part of the agreed terms is not defensible, regardless of what the written contract says.
