Chinese national discovers employment agreement was forged using passport signature
The Employment Relations Authority (ERA) recently dealt with a case involving a Chinese national who brought claims against a New Zealand company for unjustified dismissal and unjustified disadvantage.
The worker, who held a migrant exploitation protection visa, also sought penalties against the employer for breaches of employment standards and requested that company representatives be declared persons involved in these breaches.
The worker argued that despite paying substantial fees to an immigration agent in China and arriving in New Zealand with what appeared to be a valid employment agreement, he was left without work or employer contact for months.
He claimed the employer had failed to provide employment as promised and had unjustifiably dismissed and disadvantaged him through their conduct.
The worker entered New Zealand on 31 May 2023 using an accredited employer work visa (AEWV), having paid his Chinese immigration agent RMB80,000 for visa services.
His visa stated he would work as a handyman, despite having only ever worked as a cook throughout his career.
The worker used an immigration agent in China who worked as a consultant for a business in Beijing.
The immigration agent applied for the worker's visa using a 'job check' - a document that allows Immigration New Zealand (INZ) to confirm that a job is genuine and that the employer has made reasonable efforts to recruit locally.
This job check appears to have been provided by the employer's licensed immigration adviser in New Zealand, Edison Sun, to the Chinese-based immigration agent.
Upon arrival at Auckland International Airport, the worker was not collected by any employer representative but by a man known only as 'Mr Hai', who charged him NZD$200 for transport to shared accommodation in West Auckland.
The worker lived in poor conditions with other construction workers, paying $130 per week in rent whilst having no source of income. On 4 June 2023, just days after his arrival, the worker contacted the immigration agent in China through WeChat to request his employer's contact details.
However, the agent refused to provide this information, having previously claimed that the employer was running a hotel which was yet to start operating.
For over two months, the worker survived on personal savings whilst repeatedly requesting the agent to contact his employer, but these requests were ignored.
When the worker confronted his agent, he discovered the true nature of the arrangement: "he was told that the employer was only responsible for providing the visa token and not employment. [The worker] was further told that would need to find a job on his own which made him feel cheated and helpless."
After several months in New Zealand undertaking cash jobs as a labourer, the worker made a privacy request to INZ for his immigration file with the help of friends he had made locally.
When he received his file, he discovered his individual employment agreement with Drapac Limited - this was the first time the worker became aware of his employer's identity.
During the ERA's investigation meeting, details emerged about how the employment agreement was created. The worker acknowledged he had never signed any agreement with the company, revealing that the immigration agent in China "had copied his signature from his passport and pasted it into the agreement."
Marshall Shu, the employer's manager who represented the company due to his involvement with its operations, stated he had no knowledge of how the immigration agent managed to obtain a copy of his company's employment agreement.
Shu emphasised that the respondents had "neither sent nor signed" any such document. The ERA found "it was common ground that there was no job interview" between the parties.
The worker acknowledged he had no information or evidence connecting the agent to any of the New Zealand respondents and that when he applied for his visa in China, "he had not communicated with any of the respondents in New Zealand."
When asked whether he felt he had been fooled by the China-based agent, the worker explained that the man "did not provide him with much information about [the company] and had refused his requests to contact his employer."
Shu explained that in May 2023, his company operated two restaurants on Dominion Road in Auckland, both of which had been closed due to the COVID-19 pandemic.
However, there was a need for suitable staff to reopen these businesses as soon as possible.
INZ had issued the company with job checks showing there were no suitable New Zealanders available for these positions, therefore allowing the hiring of migrant workers. However, these job checks were expiring in May 2023.
Shu explained he received a telephone call from a third party stating they could provide the right person for the company, provided that a 'job check' was sent with the worker's name on it to get him to New Zealand.
Shu requested Sun, his own immigration adviser, to forward the job check to the third party's email address in China, which was done.
However, Shu "did not hear back from the third party or from [the worker] and did not know of his arrival into the country until several months later."
The first contact between the parties occurred in approximately April 2024, nearly eleven months after the worker's arrival in New Zealand. Shu received a telephone call from a woman claiming to be the worker's girlfriend.
This was "the first time [the manager] knew of [the worker's] arrival in New Zealand." Despite not accepting that he had employed the worker "because no job interview had taken place and no employment agreement was provided", Shu was still in desperate need of staff and offered to employ the worker in Rotorua.
However, the worker was unable to accept this offer as he was already working for someone else by then.
Sun attended the ERA's investigation meeting by telephone and confirmed that as instructed by Shu, he had emailed the worker's job check to an email address in China.
However, Sun confirmed "he emailed no employment agreement because he had not been asked by [the manager] to do so."
The ERA distinguished this case from Lin Guo, Shuai Zhang and Huaiyuan Kan v Victory Construction Limited & Curtis Tiau, where the New Zealand employer had directly engaged several immigration agents in China and provided them with service fees, job tokens, and blank agreement templates signed by the company director.
In contrast, whilst the company did provide the China-based immigration agent with a job check, "this was after [he] or a third party had solicited [the manager] first."
Crucially, Shu "did not pay [the China-based immigration agent] a service fee to recruit [the worker] for his company and [the company] never provided [the China-based immigration agent] with an employment agreement."
The ERA found the agents repeated refusal to facilitate contact between the worker and employer was significant evidence.
The ERA concluded this was "because [the China-based immigration agent] knew he had acted without the company's authority and that the respondents were oblivious to [the worker's] visa status and presence in New Zealand."
The ERA observed that this was "a sad case" where the worker's evidence made clear that information about his New Zealand employer "was actively being withheld from him by his own agent."
This occurred because the company "had only provided [the China-based immigration agent] with a job check for [the worker] and not an employment agreement or a signed offer of employment."
Using a company templated employment agreement with the worker's electronic signature 'cut and pasted' from his passport, [the immigration agent] was able to successfully apply for an AEWV.
The ERA noted this was possible under the "low touch" Accredited Employer Instructions at the time, which simplified the accreditation process.
However, the ERA emphasised that "the greater speed came at the cost of a much-reduced verification process that has allowed offshore agents and/or unscrupulous employers to take advantage of applicants such as [the worker]."
The ERA concluded: "the existence of an employment agreement with [the worker's] electronic signature on it is not evidence of an employment relationship between the parties especially as neither knew of the other's existence until several months after [the worker] had arrived in New Zealand in late May 2023."
All claims were dismissed, though no costs were awarded as the employer was self-represented throughout proceedings.
