An employer has been ordered to pay compensation to an Indian migrant who learnt he had no job, after his replacement showed up for work.
The Employment Court of New Zealand has ordered a company to pay $25,000 to its former employee for compensation for humiliation, loss of dignity and injury to feelings. The employer has also been ordered to pay the lost wages of $19,950 to Dilshaad Gill.
According to the judgment of Judge B A Corkill, Dilshaad Gill was employed permanently by Restaurant Brands Ltd (RBL) as an Assistant Restaurant General Manager (ARGM) on 16 January 2017; Mr Gill was offered permanent employment. Accordingly, he started working at RBL’s KFC restaurant, starting work on 24 January.
“As an immigrant from India, he required a visa for work purposes. It was a condition of his employment that he did so. After a period of a little over two years of employment, Mr Gill was dismissed because he no longer held a work-related visa,” reads the judgment.
Mr Gill then brought both disadvantage and dismissal grievances, which the Employment Relations Authority investigated. The Authority concluded, “RBL had failed to act as a good employer by failing to assist Mr Gill in his application for a visa which would have enabled him to continue working for RBL, whilst at the time giving the impression it was; had failed to be open and communicative with him by providing information regarding its intentions and by pre-emptively dismissing him when a replacement for his role was appointed on 14 February 2019.”
The Authority held that “as Mr Gill did not hold a visa which would have entitled him to work beyond the date of his dismissal, he could not be recompensed for lost wages.”
However, Mr Gill was awarded the sum of $18,000 for humiliation, loss of dignity and injury to feelings, and costs later.
RBL challenged the Authority’s decision. RBL asserted that the “termination of Mr Gill’s employment was a consequence of his immigration status and that the steps it took to assist him were those of a fair and reasonable employer.”
Mr Gill disputed the challenges, asserting in essence that the Authority had reached the correct conclusion as to liability, although it had erred as to the extent of remedies awarded.
The court heard that the company was supposed to support Mr Gill’s essential skills work visa (ESW visa).
Judge B A Corkill said that he was not satisfied that a fair and reasonable employer could have been expected to support Mr Gill’s visa application, notwithstanding the failed labour market test.
He observed that “there is insufficient prima facie proof to constitute disadvantage arising from an alleged failure by RBL to support Mr Gill by completing the INZ form, in spite of the failed test.”
However, the judge observed that “a fair and reasonable employer could be expected to have engaged constructively with Mr Gill as to his employment options.”
“I am satisfied that Mr Gill suffered very significant harm as a result of RBL’s actions. At the time of his dismissal, his wife was unemployed. He had to support her and their son,” said judge Corkill.
Mr Gill told the court that he had to borrow money from family and friends to survive. He had to sell off personal possessions to do so.
“I consider that Mr Gill has suffered effects in each of the categories of humiliation, loss of dignity and injury to feelings,” said the judge dismissing RBL’s challenge.
