ERA looks into disestablishment of role that 'did not exist'
An employee of a former hospitality business has won $11,400 in compensation as the Employment Relations Authority (ERA) ruled that he was constructively dismissed for a role that likely "did not exist."
Amandeep Singh was employed by the Surf 'N' Turf Hospitality Limited (SNT) as a "venue general manager" from October 2020 until his resignation in July 2021.
His employment was based on a work visa with Immigration New Zealand, where he was recorded under the job title.
The dispute began when Singh said SNT launched a restructuring process that would disestablish his role.
According to Singh, he saw the proposed restructure as a "demotion for no good reason," alleging that the disestablishment of his role was predetermined resulting in his resignation.
He said he resigned because he was not getting enough hours of work as agreed to and was not getting statutory breaks. He also accused SNT of not paying for the first three months of his family accommodation.
SNT, owned by Gerard Zandbergen, denied Singh's accusations, and maintained that they were genuine and fair over the restructure process.
Zandbergen also said they were carrying out a restructure process following talks among senior staff of "communication problems and a duplication of tasks between the general manager and the 'Venue General Manager'" that Singh was hired to do.
ERA looks at Singh's official role
In its investigation over the restructure, the ERA put scrutiny on Singh's official role at the organisation.
"I acknowledge that an employer has the right to organise its business interests, but I find that the role 'Venue General Manager' was likely a title used for the purpose of getting Mr. Singh's required visa to work for SNT and work in New Zealand," ERA member Antionette Baker said in the decision.
Baker also noted that Singh made changes to his individual employment agreement (IEA), where the employee later confessed to adding a standard job description that he unlikely performed when at work.
Zandbergen also told the ERA that the "venue manager role" in reality "did not exist," despite him signing a declaration to Immigration New Zealand and using the job title when proposing to disestablish the said role.
"I find this is a situation where the application to get a work visa with SNT was more important likely to both parties than the IEA accurately recording the role done," Baker said.
ERA's decision: breach of duty of good faith
The ERA then agreed that SNT breached its duty of good faith owed to Singh.
"This is because I find the restructuring process was not genuine, the role did not in reality exist," Baker said. "What I find likely was a problematic situation for Mr Zandbergen, in part of his own making."
According to Baker, Zandbergen just wanted to employ a duty manager and agreed to support a description of a more senior comprehensive role to make it happen.
"I am satisfied that Mr. Zandbergen ought to have known that the role being disestablished was not the reality," Baker said. "The actions were not what a fair and reasonable employer could have done in the circumstances, and this makes the dismissal unjust."
The ERA, meanwhile, dismissed Singh's claims over his working hours, accommodation pay, as well as the issue on statutory breaks.
