Charity work or employment? Worker says he was owed wages, not 'donations'

The Employment Relations Authority (ERA) recently dealt with a case where a retired professional argued that regular monetary payments from a business owner constituted wages rather than charitable assistance.

The worker sought more than $46,000 in alleged unpaid wages and leave entitlements, claiming he performed administrative duties for nearly two and a half years.

While the business owner acknowledged making regular payments, he maintained these were acts of kindness rather than wages, saying he "saw him like his own father."

The case raised questions about what defines an employment relationship and the role of documentation in establishing workplace arrangements.

Background of the case

The worker, aged in his 70s, brought significant international experience to New Zealand. His background included leadership roles with the United Nations Development Programme from 2002 to 2016, serving as Head of Economics at a Papua New Guinea university and Special Advisor to Namibia's President.

After moving to New Zealand in 1994, he became involved with a Buddhist temple in Ōtāhuhu. He first met the business owner in 2000 while the latter was selling potted plants.

The worker said he bought rose flowerpots because the business owner reminded him of his own son who had died at a young age in 1996.

According to the worker, their professional relationship started in November 2018 when the business owner offered him work at his landscaping company.

At the time, the worker was receiving a WINZ benefit of $319 weekly, with $175 going to rent. He said they agreed to 20 hours weekly at $18 per hour.

The worker claimed he received a company laptop and keys to the storeroom and office. He said his duties included drafting invoices, preparing quotes, reconciling bank statements, and writing marketing letters.

The worker also stated he advised on business matters, including helping select a site for the quarry products company.

The business owner strongly disputed this version of events. He said the worker started visiting his office in 2018 to use the Wi-Fi and check emails for free.

He explained: "[The worker] was in need; he was retired, had separated from his wife, and was in an estranged relationship with their son. He desired to help him as a result by donating money to him from time to time."

Bank records showed several cash payments: $600 in November 2018, $400 and $300 in December 2018, and $600 in January 2019.

The business owner also made 20 weekly payments of $80 between May and December 2019, which he maintained were donations structured to avoid affecting the worker's WINZ benefit.

Multiple witnesses from the Buddhist temple provided evidence about the worker's regular morning presence there. A Buddhist monk testified that he "usually saw [the worker] every morning between 8-9 am" and that he "would usually visit the temple then and stay until 1 pm before returning home."

The worker later argued there was an arrangement between the temple and the business owner allowing him to maintain his volunteer work while employed.

However, the ERA noted this claim only emerged after his working hours were questioned, some thirteen-and-a-half months after his initial complaint.

On-call work vs. full-time employment

The ERA found significant problems with the evidence presented. A letter to WINZ in May 2019 described the worker as a "casual/on call cleaner" starting from March 2019, contradicting his claim of starting as an office administrator in November 2018.

The authority member wrote: "Having drafted a letter knowing that its contents were not true, the documents [the worker] has provided to the Authority as evidence of his work at [the company] must be approached with caution."

The ERA also questioned why the first text message about unpaid wages appeared in May 2021, despite claims that arrears began accumulating in November 2018. The authority noted: "The difficulty in accepting [the worker's] evidence is its mobility and inconsistency which leaves me finding against an alleged employment relationship between him and [the company]."

Ultimately, the ERA concluded: "Before the Authority can grant leave under s 142Y of the Act, it must, among other things, be satisfied that there are wages and other money payable to an employee... I find that [the worker] was not an employee of [the company]."

The parties were ordered to bear their own costs.