Mr S’s work permit was tied exclusively to the Plaza Indian and in November 2008 the owner took Mr S’s passport to help him renew his work permit. The owner never returned the passport despite numerous requests.
Months later Mr S again asked for his correct wages and his passport, or he would resign. The owner responded that if he did leave he would be accused of stealing from the restaurant.
This was the last straw and Mr S did not return to work. Instead he went to the police station to seek assistance in getting his passport back.
In the Authority Mr S bought a claim of constructive dismissal. Constructive dismissal arises where an employee feels that they have no other option but to resign. In essence the employee is saying that the conditions of his or her employment were so bad that there was no other choice but to leave.
The difficulty with this case was which version of events the Authority accepted. The issue was one of credibility where the Authority had to decide who was telling the truth. This is so often the case. (Another reason why I tell employers to keep records; make sure that you document issues; have written employment agreements; and to keep records of warnings, time and wages, holiday and sick leave)
In coming to its decision the Authority had a number of problems to overcome. Events took place several years ago. There were a lack of witnesses to support Mr S’s statements and he had limited English. The Authority also considered it unlikely that someone would put up with working for nine months for less than $100.00 per week.
However in support of Mr S the Authority considered that the owner had most probably forged Mr S’s signature on a wage record. Evidence given by a Police Constable who helped Mr S with the passport problem, was that he was totally dependent on the owner and, in her words, “was under his control absolutely”.
Weighing up the forged document, the Police Constable’s evidence and the fact that Mr S had raised the grievance as soon as he could; the Authority accepted the employee’s version of events.
The Authority found that, allowing for the weekly payment of $100.00 gross that Mr S had received out of the till, (and allowing for the fact that he had been provided with free accommodation) the total underpayment of his wages over the period of employment was $18,860.00 gross.
The Authority also considered that Mr S was also entitled to three months lost wages being $7,280.00 gross.
The Authority felt that compensation in the full amount claimed of $15,000.00 was appropriate, as Mr S was a new immigrant and an extremely vulnerable employee.
