The sole director and shareholder of Direct Auto Importers and Cheap Deals on Wheels, Vishaal Sharma, had claimed that his employees were contractors and had denied owing them their minimum entitlements.
Following a Labour Inspectorate investigation however, the Labour Inspectorate disagreed. The failure to categorise his employees correctly resulted in fines of $65,000 to his two businesses.
The ERA found that both Direct Auto Importers and Cheap Deals on Wheels had not only failed to pay minimum wage or correct holiday pay to their employees, but had also failed to provide employee agreements and didn’t keep accurate records of employment.
A Labour Inspectorate manager, Loua Ward, said “An employer cannot avoid their obligations by simply calling their employees ‘contractors’, and any attempts to do so will not be tolerated by the inspectorate. All employees in New Zealand must be provided with written employment agreements and their minimum employment entitlements, such as the minimum wage and holiday pay,” She also added. “If an employer cannot meet these basic obligations, then they should not be an employer.”
Ms Ward also noted that this incident was not the first offence for one of the organisations, Direct Auto Importers. They were taken to the ERA last year by an employee who was able to successfully claim $17,996 in arrears. She emphasised that as a result of that claim the employer should have known their obligations.
The responsibility lies with employers to provide their employees with all their correct minimum entitlements and ignorance is no excuse.
Direct Auto Importers were penalised to the tune of $50,000 for not paying holiday pay, providing written employment agreements, or keeping wage, time holiday or leave records, and a further $726 in arrears was ordered to be paid to two staff members for holiday pay owed and working on public holidays.
$15,000 was the penalty for Cheap Deals on Wheels for similar breaches and the ERA also set aside an amount of $10,000 in penalties to be arranged for three former employees of the businesses.
This case sets a serious precedent that employers should take note of. If you are in any doubt as to whether your contractors and/or employees are categorised correctly, please contact us for clarification.
This post is supplied by Chapman Employment Relations