ERA rules sustained wage non-payment amounts to constructive dismissal
A Malaysian labourer worked 17 weeks without pay. His employer denied ever knowing him. The Employment Relations Authority found an employment relationship existed regardless.
When ZiGen Wong arrived in New Zealand in September 2023 on a visitor visa, he hoped to find an employer to sponsor him for a work visa. Through a friend of a friend, Wong was introduced to Jason Liew, who offered labouring work at a downtown Auckland construction site. He started the following day, 26 September 2023, given a site ID card and PIN for access, according to the Employment Relations Authority's determination in Wong v NZAT Construction Limited [2026] NZERA 193.
He signed no employment agreement, received no payslips, and had no IRD number. All payments were in cash. Yet on 31 March 2026, the Employment Relations Authority (ERA) ruled that a genuine employment relationship had existed throughout.
The terms were verbal: $25 an hour, 9.5 hours a day, Monday to Friday, totalling $1,187.50 gross per week. Hours were initially recorded on a document headed "NZAT Construction LTD Weekly Time Sheet," though that practice eventually stopped. No end date was discussed, and Wong believed the working relationship would be ongoing, potentially across other worksites.
Payments became erratic in early 2024. Wong says he was paid through Christmas 2023, with money arriving sporadically between January and April 2024. For the 17 weeks between 8 January 2024 and 5 May 2024, he received nothing, yet continued working. He repeatedly asked Liew for payment during March and April 2024; promises were made and largely not kept.
On 5 May 2024, Liew told Wong the site had reduced staff and he was to "take a break for now". On 7 May 2024, a new site in the south was mentioned, but work never eventuated. By late July 2024, Liew acknowledged the debt but said he could not pay. He offered Wong $2,000 and sent a message: "you should hurry up and buy your ticket home. I'll transfer the rest to you bit by bit later." The $2,000 was paid in cash around 28 July 2024. That was the last payment Wong received.
NZAT Construction's then director, Vin Kay Low, emailed the ERA denying that the company employed staff and that it knew the applicant. The company did not participate further in the proceedings.
ERA Member Matthew Piper was unconvinced. Applying the control, integration and economic reality tests, he found Wong was employed by NZAT Construction from 26 September 2023 to 5 May 2024. The absence of paperwork, and Wong's lack of a work visa and tax registration, did not alter that finding; both matters fell outside the ERA's jurisdiction.
On the question of constructive dismissal, the Authority was equally clear: "a sustained failure to pay wages on time or at all, as occurred here, can amount to an unjustified constructive dismissal."
NZAT Construction was ordered to pay $18,187.50 in wage arrears, $1,455 in holiday entitlements and $8,000 in compensation for humiliation and injury to feelings, plus $3,500 as a contribution to costs and Wong's $71.55 lodgement fee. Both the wage and holiday figures are gross; each party retains separate obligations to the Inland Revenue Department.
Wong's claim for lost wages was declined. Having no work visa, and not having applied for one after his employment ended, the ERA found he had not taken a fundamental step toward lawful employment. His undocumented status, while blameworthy in a general sense, was not causative of the grievance, and no reduction was applied to the other remedies.
One message stands out: an employment relationship does not require written documentation to be legally enforceable. Where work is performed regularly under direction for a single organisation, the law may find employment exists regardless of how it was described or what records were kept.
