Worker to get $25k after 'opportunistic' employer failed to pass on wage subsidy

Thursday, 18 February 2021

A Christchurch truck driver has been awarded $25,000 by the Employment Relations Authority after his “crude and opportunistic” employer failed to pass on the Covid-19 wage subsidy.

Although Murray Cousens had never received a written contract, the authority heard, he worked full-time at Star Nelson Holdings Limited (trading as Star Moving and Distribution), for six months until May last year.

Throughout the level 4 lockdown, Cousens had to rely on emergency funding from Work and Income because Star Nelson would not pay him the Covid-19 wage subsidy it applied for on his behalf.

When Cousens asked his boss why he had not been paid, he was asked to sign an illegal zero-hour contract backdated to his first day at the company in November 2019.

**READ MORE:

* Coronavirus: The rights of employees and employers during Covid lockdown

* Coronavirus: Some workers missing out despite wage subsidy

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**

Cousens was told he would get a full-time employee’s contract after Covid-19 restrictions lifted.

After he refused to sign the agreement, Star Nelson’s regional manager told Cousens the company could not have him on the premises as it would leave them “uninsured” and suggested he take a week off.

Upset by the way he had been treated, Cousens decided to resign.

Star Nelson Holdings, which received $260,000 through the government wage subsidy for 37 workers, claimed Cousens had not been paid the subsidy because he was a casual worker.

Cousens was under the impression he was a full-time permanent employee, but according to his payslip he was paid on a “pay as you go” basis and allocated shifts every day, like a casual worker would.

However, in the absence of a written employment contract, the authority said the relationship was not clear-cut because Cousens was offered regular work, 40 hours a week, unlike a casual agreement.

He started work at 7.30am and would finish as late as 6pm.

The authority concluded Cousens’ work was akin to a full-time worker, rather than a casual one.

Authority member David Beck said Star Nelson Holdings’ attempt to impose a backdated casual employment agreement was an “opportunistic and crude” attempt to impose the illegal zero hours contract.

Cousens was found to be unjustifiably dismissed as the insistence that he could not return to work or continue working beyond the end of the week without signing a casual employment agreement amounted to a dismissal.

In doing so Star Nelson Holdings failed to act as fair and reasonable employer, the authority said.

Cousens’ was also unjustifiably disadvantaged, the authority said, as Star Nelson Holdings failed to pass the wage subsidy payment on to him.

Star Nelson Holdings has been ordered to pay Cousens $25,000 in compensation.

The company must also pay a $4000 fine, half of which would be paid to the Crown, and the remainder to Cousens, for breaching good faith by failing to pass on the wage subsidy.

Star Nelson Holdings has been approached for comment.