Getting it right when hiring staff
Magdalene Phythian (Chinese version translated by Danny Wong)
Chan Mei Ying was an attractive 24 year old who came to New Zealand on a working holiday visa, hoping that it would pave the way for her to ultimately gain residency. She met a young man from her home town in China, named Peter Yan. However, Peter was an over-stayer (meaning he did not have legal residence in New Zealand).
After searching for about 2 months, Mei Ying was offered a waitressing position with a small Chinese restaurant. She was happy with her pay of $18 per hour. But the restaurant was very busy and she found that she was standing on her feet most of the day and was not able to take the breaks she so desperately needed. She introduced Peter to her supervisor who was gave him a job in the kitchen, paying $16 per hour. The employer did not give either of them an employment agreement.
One day, Peter was working hard in the kitchen, and accidently cut his finger. He went to get some sticking plasters. Unfortunately, he slipped and fell on his back. He picked himself up and continued with his work. His supervisor saw the incident but did nothing about it. The kitchen floor was often slippery and this was not the first time that a staff member had fallen.
It was only later that he realised that he had injured his back. They went to see a Chinese doctor. The treatment was effective to some extent but it did not quite deal with the pain. Peter was getting quite desperate because he was not sleeping well due to back pain. Mei Ying too was feeling exhausted as her employer required more and more of her. She was required to work extra hard when others called in sick with the winter flu. She too was not happy.
Employer Obligations – some points
The pair met a kindly gentleman from their hometown who advised them of their rights under law. He directed them to the Ministry of Business, Innovation and Employment (MBIE) website and raised the following matters:
1) He told them that Peter should not have been employed as he was an over-stayer. He is obliged to leave the country as soon as possible. Under the Immigration Act 2009, employers are not allowed to employ a foreign national who is not entitled to work in NZ, whether or not the employer knew that the foreigner was not entitled to work. (Before hiring people, employers should ask an employee to provide their passport or relevant document from the Immigration New Zealand to show that the employee is eligible to work in New Zealand.)
2) Mei Ying and Peter should have been given employment letters before commencing work and be given the opportunity to seek independent advice.
3) He said that from 1 April 2022 the adult minimum wage is $21.20 per hour before tax. Some young people can be paid the the starting-out minimum wage which is $16.96 an hour before tax. The training minimum wage is $16.96 an hour before tax.
4) Mei Ying has not enjoyed the breaks that she was entitled to. She was entitled to a 10 minute paid break if she had worked between 2 and 4 hours. If she worked between 4 to 6 hours, she should have been given an unpaid 30 minute meal break. If she worked more than 6 and up to 8 hours, there is a requirement of two paid 10 minutes breaks.
5) An employer has an obligation to provide a safe workplace with proper training, supervision and equipment. There is a need to identify, assess and manage hazard and investigating health and safety incidents. Peter’s fall should have been recorded in an Incident Register and measures taken to prevent further accidents.
Mei Ying was asked to seek professional advice and to seek a solution to her problem by speaking first to her employer. She could complain to the MBIE. It is the role of Labour Inspectors to monitor and enforce minimum employment conditions. Mei Ying was thankful for the advice given and said that she would consider what action she should take.
Note: this article refers to fictitious people, but the information about employment laws is factual.
- Magdalene Phythian is a guest columnist for Chiwi Jobs. She is a barrister and solicitor of the High Court of New Zealand and admitted as a lawyer in the Supreme Court of Western Australia. She also holds a Masters in Educational Management (Hons) and an Arts degree. Originally from Singapore, she has been in Australia and New Zealand for the past 25 years. She has a keen interest in working across cultures.
- Danny Wong is a graduate of AUT in Applied Language Studies.