Migrant worker to employers: 'I am not your servant'

Wednesday, 21 November 2018

Christchurch dairy owners Kavita Tailor and her husband, Mayurkumar Tailor, have been ordered to pay a former employee a six-figure sum for paying below minimum wage.

A Christchurch dairy has been ordered to pay more than $103,000 in unpaid wages and entitlements to a migrant worker who was working up to 92 hours a week for as little as $1.98 an hour.

The amount is the highest awarded by the ERA in a Labour Inspectorate case for breaches of an individual employee’s minimum employment entitlements.

The company operating a Christchurch dairy has been ordered to pay a migrant worker more than $103,000 in unpaid wages.

Messages provided to the Employment Relations Authority (ERA) as part of its investigation show the migrant worker, named only as Y Patel, requested better treatment.

In an October 2015 message, Patel claimed to be working 14 hours a day, Monday to Friday, and 11 hours a day on Saturdays and Sundays at the Smoko Price Cutter dairy, on Marshland Rd, Shirley.

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'I am not your servant,' he wrote in capital letters. 'Be human please.' The message, a request to stop working so much, was followed a day later by a written retraction.

Patel said his employer wrote down on a piece of paper what he had to write in his retraction, and said if he complained again he would be fired and his visa cancelled. His employers denied the claim. In her determination, ERA member Helen Doyle sided with Patel.

The determination, issued on November 12, ordered Indy Supa Store, the company behind the dairy, to pay Patel about $103,000 in unpaid wages and entitlements.

It also imposed penalties of $61,000 on the company and $12,000 each for its director, Kavita Tailor, and her husband, Mayurkumar Tailor. The Tailors substantively denied the claims.

Their representative tried to claim Patel had 'schemed the whole scam up for his own financial gain', according to the determination. Doyle disagreed, and instead characterised Patel as a vulnerable migrant worker.

His resignation letter revealed he was in 'so much depression' he thought about ending his life from working long hours without breaks, the determination said.

In a release, the Labour Inspectorate said Patel had been working up to 92 hours a week between March 2013 and February 2017, that he was not paid the minimum wage and other entitlements, and that proper records were not kept.

Patel's average hourly rate during his employment was $9.97 an hour, which was approximately $5 below the minimum wage. He was paid as little as $3.95 per hour from March 2013 to August 2013, and $1.98 per hour between August 11, 2013 to August 25, 2013.

In one Whatsapp message to Tailor, Patel said he was working so much he 'can’t use washroom or can’t even have meal properly and I take shower only once in a week and not getting enough sleep and rest to. I’m having headache since last 2 weeks'.

The respondents said Patel worked and was paid for a 40-hour week, and relied on reconstructed records to prove their case.

Whatsapp messages, initially dismissed by the respondents as 'fake', customer testimony and a food diary Patel said he was required to keep to reimburse the business contradicted the records.

'It is more likely, I find, that they were made up for Immigration purposes,' Doyle said. 'They have then been used to support that Mr Patel only worked 40 hours each week. That I find is not the case.'

Borsboom said the case was a reminder that migrant workers must be treated the same as New Zealanders, adding consumers had an important role to play by being vigilant where they spent their money.

'It was clear from all evidence that the employee feared for his treatment and wellbeing. Migrant workers are an important part of New Zealand society and this treatment is completely unacceptable,' she said.

The Labour Inspectorate said they were aware of one other employee working at the dairy and would continue to follow up with the employer to ensure they are now complying with the law.

Anyone with information about minimum standards or visa conditions not being met can call 0800 20 90 20.