Thursday, January 19, 2012

Non-payment of award 'bad look'

An exploited Malaysian Chinese cook awarded nearly $100,000 after employment hearings last year has yet to receive a cent from the Chinese restaurant in which she worked.

Her Christchurch immigration agent, John Horan, said the Employment Relations Authority (ERA) had inadequate "teeth" to enforce awards, which he believed should be treated more like fines.

Boon Chwee Tan, 57, came to New Zealand from Malaysia in 1999 and in 2000 began working at the Asha restaurant in Riccarton operated by businessman Chung Wong.

She told the ERA hearings that she had often worked more than 60 hours a week until 2008 but was never paid overtime, holiday pay or penal rates for working public holidays.

Authority member Helen Doyle last year ruled Tan was unjustifiably dismissed and awarded $95,000 in back pay and costs against both Wong personally and his company Asha Co.

Wong's lawyer recently advised Tan the restaurant could not pay as it had no funds.

Tan told The Press her inability to get payment was a bad look for the New Zealand justice system.

"It feels like we won the battle but lost the war," her partner, Trevor Taylor, said.

Horan said he, Taylor and Tan had worked hard for two years to get a just settlement.

"This case shows how difficult it is for employees to get compensation out of small businesses which don't have a big profile," Horan said.

His client now faced a long battle in the courts to get the money she was awarded, he said.

"Surely it would be better if the ERA immediately enforced payment through time payment or whatever, with an ability to impose fines or imprisonment if no money is forthcoming. Some employers can thumb their noses at the ERA."

Wong did not respond to messages.

Initially, staff at his restaurant said he was busy and later said he no longer operated the restaurant although he helped out occasionally.

Chwee Tan's story

I am now 57 and work in a factory in Christchurch. It is relaxing compared to working at the Asha Restaurant.

I live with my New Zealand partner whose wife died of leukaemia several years ago.

I came to New Zealand from Malaysia in 1999 as a trained chef and obtained a work permit. I had been working as a chef for about nine years.

In August 2000, I began work as a chef at the Asha Restaurant in Riccarton owned by Chung Wong, who had previously been a chef himself.

There was a lot to do and I worked 10-hour days six days a week.

I was paid $350 in the hand each week in cash. I had Tuesdays off.

I was never paid any extra for working public holidays or for the extra hours I worked. I did not get any holidays and did not get holiday pay.

Chung told me since I worked in a Chinese restaurant, it was the laws of China.

I had to keep working because I was in New Zealand on a work permit and would have to leave if I could not find other work.

I hoped to show a good work record and get permanent residency.

When I did apply for permanent residency my tax records showed I only paid a little amount of tax.

I got permanent residency last year.

In 2003 my wages were increased to $450 weekly. Chung said that included holiday pay and public holiday pay.

In 2004 the restaurant started opening for longer – to 2am – and I had to cover for a worker who left. I had to work very hard, sometimes 12 hours a day.

I thought I had no choice because of the work permit situation.

I got a lot of the blame for things going wrong in the restaurant. Chung would yell at me and I felt small and bad because of his yelling.

I always worried I would lose my job and many times over the years I went home crying. This was my life for so many years I became very sick and lost much weight and always felt very unhappy.

In 2006 my employment contract was for me to be head chef, but I was not paid any more wages and worked on average 69 hours over a six-day week.

During 2007/2008 my pay was $550 cash every week but Chung would give me the money and take $50 back and say it was to help me pay tax.In late 2008 I began a relationship with Mr Taylor who I had known for many years.

He said I was being treated like a slave and insisted I not work on public holidays unless I was paid the proper New Zealand rates.

Around Christmas of 2008 I told Chung I wanted the proper pay rate to work the public holidays. We had a big argument and Chung was very upset.

He yelled at me and said in New Zealand you kill someone and you just go to jail, not like China where they execute you. [Wong denies saying this.]

I worked Christmas Day and Boxing Day and on December 30, 2008.

I was paid an extra $100 for Christmas and Boxing days and told not to come back because there was no work for me.

I was very tired and stressed. I had to rest for a long time before I felt better again.

I know of other Chinese workers on work permits who have had similar experiences.

I was never told about my employment rights in New Zealand.

I was told by other Chinese "just work. No questions or no job".

Last updated 05:00 12/02/2011

$90,000 win for worker

A Christchurch restaurant worker who says she was threatened for asking for a holiday at Christmas has been awarded more than $90,000 in compensation.

The Employment Relations Authority (ERA) ruled that Boon Chwee Tan was dismissed unjustifiably by her employers, Chung Wong and Asha Co Ltd, in December 2008 after eight years at the Asha Restaurant in Riccarton Rd.

The authority's decision was released yesterday.

Tan told the authority she did not have any paid holidays, was not paid appropriately for working public holidays, worked considerable overtime for which she was not paid, was subjected to verbal threats and was discriminated against.

She said she was contracted to work up to 40 hours a week, but worked up to 57 hours over six days.

Tan said Wong threatened her when she requested leave for Christmas Day 2008.

She quit because she was "very tired and worn out" and gave two weeks notice on December 22, 2008.

She said Wong agreed to her leaving on December 30, but then told her to go on December 28.

Wong said Tan gave only one week's notice and that he did not argue with her or make threats.

He said he was told she did not want to work because her partner would "make trouble".

Wong said Tan was paid extra for working public days.

During the initial part of her employment, she worked four days, from noon until 2pm and from 4pm to 8pm.

She would also work on Saturdays and Sundays, from noon until 2pm and from 4pm until 8.30pm.

Wong said this changed in September 2005 when Tan's wages were increased and she worked from 11am to 2pm and from 5pm to 8.30pm during the week, and from 11am to 2pm and from 5pm to 9pm on Saturdays and Sundays.

ERA member Helen Doyle said she was satisfied that Tan worked longer hours than the 38 hours, and later 40 hours.

"I find from her evidence that she was starting to feel quite torn between her partner's view that she should not work in such conditions and her workplace where she had worked for eight years," she said.

Doyle said the threat alleged was "serious" but found it was made by another employee.

"It may have been made by another employee, but I am not satisfied that it was made by Mr Wong in relation to Ms Tan working on Christmas Day," she said.

" I find that the reason for Ms Tan resigning was the pressure she was feeling about claiming money and enforcing rights in circumstances where she was continuing to work at the restaurant."

Doyle awarded Tan a total of $90,304 and reserved costs.

- © Fairfax NZ News

1 comment:

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