ERA finds worker's dismissal to be related to his 'personal friendships' with other colleagues
An Auckland commercial painting contractor has been ordered to pay more than $30,000 it unjustifiably dismissed a Brazilian worker over his personal friendships with colleagues, following a pattern of threats designed to exploit his visa-dependent status.
The Employment Relations Authority (ERA) ruled this month that the company had failed to meet either the procedural or substantive requirements for a justified dismissal.
The worker, a painter's assistant, began working for the company in August 2023 on a visitor visa before being granted an Accredited Employer Work Visa in November that year.
From early in his employment, the worker alleged that the company's director made repeated threats of dismissal and used his visa status as leverage over him and his colleagues.
During a job in late 2023, the director allegedly told workers their failure to clean up was "unacceptable," that they "did not know how to be grateful for the opportunity to work in New Zealand with a work visa." He also warned that he may keep only two or even one of them.
The situation came to a head in May 2024, when the worker and two colleagues were called into a meeting lasting approximately six minutes and told their employment was ending.
No prior warning of the meeting was given, and no opportunity to bring a support person was provided. A dismissal notice followed by email the same afternoon.
Days later, the director told the workers he could contact immigration to have their visas cancelled, and offered to reinstate them on the condition they stop speaking about him outside work hours. The worker declined, not finding the offer genuine. He raised a personal grievance on 30 August 2024.
ERA's decision
The ERA found the dismissal was unjustified on both procedural and substantive grounds.
"The dismissal meeting clearly did not provide a sufficient opportunity for [the company] to raise its concerns and provide all relevant information to [the worker], or an opportunity to comment before the decision was made. The content of the letter also made it clear a decision had already been made," the ERA ruled.
The company relied on a series of verbal warnings it claimed to have issued, but the ERA found these could not be verified.
It noted that recorded admissions from the director himself undermined any reliance on prior warnings. In audio messages provided to the ERA, the director had stated: "I will never give a warning. I've never done it and I never will."
On substance, the ERA was also unconvinced that the dismissal related to conduct or performance.
"None of the three employees were provided the opportunity to participate in a disciplinary investigation or provide responses on the decision to dismiss," the ERA said. "This indicates [the worker's] dismissal was not related to conduct or performance issues … and that instead it related the personal friendships between [the three employees]."
The ERA also upheld a personal grievance for unjustified disadvantage, finding that the director's conduct during employment had "objectively" created a hostile and insecure work environment.
The ERA found the director's comments were corroborated by recorded transcripts and were consistent with the manner in which the dismissal was ultimately carried out.
The worker was awarded $20,000 in compensation for hurt and humiliation arising from the dismissal, and a further $5,000 for the disadvantage grievance.
He was also awarded $1,440 in lost wages, $2,698.15 in wage arrears for unpaid contracted hours, public holiday pay for Good Friday and ANZAC Day 2024, and interest on arrears.
Penalties of $3,000 were imposed for breaches of good faith, record-keeping obligations, and public holiday pay provisions. Half was payable to the worker and half to the Crown.
