Migrant Exploitation Continues ...
The headline was spectacular: “Christchurch dairy Indy Supa fined $188,500 after exploiting worker” which appeared in the Press on 21 November 2018. Indy Supa Store Ltd (trading as “Indy Supa”, now “Smoko Price Cutter”) was owned by Kavita Tailor, assisted by her husband Mayurkumar Tailor.
The employee, Mr Patel, claimed that he was working up to 92 hours per week. The Tailors’ claimed that he was only working 40 hours per week and produced wage and time records in support of their view. In the decision, the Authority called those records the “reconstructed” wage and time records, which indicates pretty clearly the Authority didn’t think much of them.
And having dug themselves a hole, the Tailors’, and their lawyer, kept digging. The Tailors’ said it was Mr Patel’s responsibility to keep a record of his hours. This is nonsense, and further undermined the credibility of the Tailors’ – only the employer has a legal requirement to keep wage and time records.
There being ample grounds to question the accuracy of the records provided by the employer, the Authority looked at other evidence of the hours worked, including messages in ‘WhatsApp’ and text messages. It didn’t help credibility when the employer described these messages as “a fiction” and “a fake” prior to the Authority investigation. Credibility took another blow when the Tailors’ then told the Authority the ‘WhatsApp’ conversations did take place. Credibility took yet another blow when Mrs Taylor said she was stressed when she initially described these messages as fake. The Authority stated the obvious at paragraph 28 in the decision: “Credibility is an issue in this case”. The decision then goes through all the evidence about the hours worked and came to the conclusion that the wage and time records provided by the Tailors, were fiction and could not be relied upon.
Some of this evidence was really compelling. A ‘WhatsApp’ message from Mr Patel to Mrs Tailor:
“just want to let you know that from next week I’m not gonna work every day. It’s more than 2 years I have been working every day on my own, Monday to Friday 14 hours, Saturday 11 hours and Sunday 11 hours with any break in a day so without break I can’t use washroom or can’t even have a meal properly and I take shower only once in a week and not getting enough sleep and rest…I’m having headache since last 2 weeks so considering my health I won’t work on Sunday….. So, in future I think my health is not good and I can’t work anymore hours, I will let you know. And also tell your husband to stop bullying me and forcing me to work hard, he is here in New Zealand now and he can come and help me rather than forcing me. I alone cannot do everything. I AM NOT YOUR SERVANT, BE HUMAN PLEASE”.
Mrs Tailor did not reply to this message. Mr Patel said that Mr Tailor forced Mr Patel to retract this message and apologise for his behavior. Mr Tailor denied that and said that Mr Patel was simply apologising of his own accord. The apology that appeared on ‘WhatsApp’ said:
“This is purely I have written in frustration and no other intention. It has nothing to do with truth. Please don’t take it seriously as I said it has nothing to do with…”
Throughout the decision there are a number of examples where credibility was a huge issue and it appears that the credibility of the Tailors only ever went in one direction….
The Authority put this into more diplomatic terms “I prefer Mr Patel’s evidence as more likely than not….”and “I find there is a real issue about the credibility of Mr and Mrs Tailor….”
The Authority went through all the evidence about the hours worked by Mr Patel. This included record of food he had purchased while working, the testimony of other workers (one who appeared on Skype from India) and the results of investigations by the labour inspector. This included the evidence of Ms Lynn, who lived opposite Indy Supa. Ms Lynn is retired and spends much of her time at home. She got her milk; bread and lotto ticket from her dairy, across the road. She gave detailed evidence about the hours of work for Mr Patel. This included evidence about Mr Tailor knocking on her front door and asking her to withdraw her statement to the labour inspector, which she refused to do. It was no real surprise to see the Authority described Mr Lynn as “a straightforward witness who took an interest in and observed the comings and goings of the neighbourhood and the dairy”.
Having reviewed all of the evidence, the Authority accepted the wage and time records as presented by the labour inspector, which were described as a “thorough investigation and careful assessment into Mr Patel’s complaint”. Mr Patel was described as “a credible straightforward witness who if anything somewhat understated his evidence’.
Remedies were then decided. $81,565.50 was owing in wages alone. Annual leave, public holidays, and alternative day arrears added a further $21,448.10 to this amount. Just over 100K in taxable income. Penalty interest of $5,361 was also added to this amount.
The next issue was penalties for breaches of the Minimum Wage Act and the Employment Relations Act by the Tailors. The maximum level of penalties available to the Authority in this case, was $160,000, being the maximum of $20,000 for 8 separate breaches. After considering various factors the Authority reduce this to $61,600. The Authority then imposed a further $24,000 in penalties on the Tailors, personally, being separate to those penalties imposed on Indy Supa. Of this amount, $20,000 was to go to Mr Patel, and the balance to the Crown account.
It remains to be seen if any of this money will be paid. I would not be in the least surprised if Indy Supa was sold to a third party; the Tailors then claim to have no assets in their personal name (they have 2 properties in a family trust) and then placed themselves into voluntary bankruptcy. But this approach to avoid penalties carries significant risk. Jujhar Singh owned a company called Binde Enterprises. He put his company into liquidation after his company was fined almost $430,000 for exploiting migrant workers on a vegetable farm near Auckland. The labour inspector took this to the Employment Relations Authority who made Jujhar Singh personally liable to pay the outstanding $120,000.
Summary - this decision should give all those employers out there, exploiting their workforce, especially the migrant workforce, nightmares. $188,500 is a huge sum of money, well beyond the resources of most small businesses to fund. And so, if the Tailors do go bankrupt and are no longer able to employ staff then that is a win for everybody. New Zealand does not need employers seeking to gain a competitive advantage by exploiting their workforce.
And to all those people interested in supporting migrant workers, firstly I encourage you to read the decision in full, [link below] and then secondly send this article to every migrant group you know of in New Zealand. It is very common for migrant workers not to know their rights and once challenged for employers to create wage in time records. But the labour inspector and the Authority went far beyond that - good old Ms Lynn, retired, living across the road. She had the eyes of an eagle and knew exactly what she saw. Admittedly there will be times when evidence of underpayment of wages and so forth is difficult to find. But difficult is not impossible.
Ink to the ERA decision: https://www.employment.govt.nz/assets/elawpdf/2018/2018-NZERA-Christchurch-166-amended.pdf