A South Island company will have to pay more than $20,000 to a former employee after underpaying and unjustifiably dismissing him.
A decision from the Employment Relations Authority (ERA) released this week stated Marlon Batista dos Santos was employed by Southland Food Services (SFS) from March 2020 as a delivery driver based in Queenstown.
Employment Relations Authority member Philip Cheyne said Mr dos Santos’ employment was discontinued during the Covid 19 lockdown in March 2020, but resumed in June 2020.
At the time, Mr dos Santos and a director of the company had exchanged text messages where he confirmed that SFS would pay the wage subsidy for Mr dos Santos for 12 weeks but he did not need to report for work.
On April 3, the same director got in touch with the employee to say they had decided to close the Queenstown branch and end Mr dos Santos’ employment.
Mr Cheyne said under the employment agreement, Mr dos Santos was entitled to payment of two weeks’ notice of dismissal plus wages of at least $1000 per week from March 5 until he was dismissed on April 3, a period of four weeks and one day.
"I find that Mr dos Santos was paid $3860 less than was payable to him under his employment agreement for this first period of employment," he said.
Mr Cheyne said then Mr dos Santos was re-employed by SFS with an agreed hourly wage of $20 — rather than $25 hourly — as a temporary arrangement.
In June 2021, SFS wrote to Mr dos Santos offering him a full-time position at the rate of $25.50 per hour, which was accepted.
However, the company continued to pay him $20 hourly despite the new employment agreement. The decision also stated Mr dos Santos injured himself in a non-work accident on July 17, 2021, and was off work from then on ACC payments.
Due to the situation, Mr dos Santos instructed a representative, David Buckingham, to engage with the Southland company — however, his attempt failed.
Mr Cheyne investigated the matter and found the company had failed to pay his wages, sick leave and annual leave correctly.
"Being paid less than the agreed rate in July 2021 and the failure to engage with the representative and provide the wages and time records were serious breaches of duty," he wrote.
"I find that the breaches were sufficiently serious ... SFS has not sought to justify its actions or how it acted.
"I find that Mr dos Santos was unjustifiably dismissed and has a personal grievance."
Mr Cheyne ordered the company to pay $23,160.06 to Mr dos Santos, which included $10,000 compensation for personal grievance and $2000 for breaching the employment agreement.
The company must also pay $4500 in penalties to the ERA for not providing wages and time records and for not paying final holiday pay at termination of the employment in 2021.
