Head chef wins nearly $300,000 after exploitation by employer

The head chef of a well-known Asian eatery in North Shore has been won nearly $300,000 after he was subjected to serious exploitation by his employer.

Jian Zhang is a Chinese national with around 30 years of experience working as a chef and head chef in China, specialising in Sichuan cuisine.

In April 2018, he entered New Zealand under a Work to Residence visa while being employed by Panda Restaurant Limited (PRL) to work for 48 hours and six days each week.

But prior to his entry, Zhang told the ERA that he paid his employer over $116,000, which includes payment for his work visa and restaurant equipment that he to be shipped from China.

According to Zhang, he made the payments because it was "supposed to be loan based on trust." He also noted that he had a close friendship with PRL owners, Tao Echo Feng and Fai Calvin Lam.

He added that he also had concerns that he may not get to New Zealand reclaim what he was owed if he did not pay what was asked, according to the ERA document.

Working conditions

When he arrived in New Zealand to work, Zhang alleged that he "worked long hours, without breaks and often without assistance," approximating 70 hours per week, despite being paid only for 40 to 48 hours. 

In January 2021, he told Feng that he needed more help in the kitchen, who told him that if he was unhappy, he should leave.

He also alleged that Feng subjected him to "unwarranted criticism, complaints, and sarcastic comments.

Later than month, Zhang gave two weeks' notice of his resignation. By March, he was asking Feng for his "loan" back.

In his application to the ERA, the chef is seeking penalties for breaches under the Wages Protection Act 1983, the Holidays Act 2003, and the Employment Relations Act 2000, as well as his employment agreement.

He also pursued a personal grievance for unjustified constructive dismissal and compensation.

Employers' defence

The employers, however, argued that Zhang's payments were a "premium for his employment."

They claimed that Zhang was a shareholder in the business, adding that he was paid for all hours he worked and received all statutory entitlements.

Zhang also left PRL on his own volition, according to the directors, further accusing the chef of seeking financial gain.

ERA decision

But the ERA ruled in favour of Zhang in the case, ruling that he was unjustifiably constructively dismissed and that he was owed wages.

"Failure to pay wages in full when due and owing is a serious breach of the duty owed to Mr Zhang as PRL's employee. PRL breached this duty owed to Mr Zhang because it did not pay Mr Zhang for all hours worked when the payment for that work fell due under the terms the parties had agreed," the ERA ruled.

The authority also rejected the employers' claim that Zhang is a shareholder rather than an employee.

"PRL entered into written employment agreements with Mr Zhang in which his entitlements were made clear," it said. "It had employment relationships with other employees and ought to have known and complied with its obligations. In my view, the respondents have cynically continued to advance the claim that Mr Zhang was a shareholder, when that was not the case.

In assessing penalties, the ERA considered Zhang's status in New Zealand at the time of the case.

"As a new migrant with limited English and no experience living and working here, Mr Zhang was vulnerable. His work visa was dependent on his employment with PRL," the ERA said.

"Because of the significant premium payments made, Mr Zhang was tied to the employment, and it became clear to him he needed to work as hard as possible to recover the amounts he paid, with the alternative option being to walk away."

PRL was then ordered to pay Zhang the following:

• $116,854 as a debt for the premium payments
• $74,645.60 as arrears of wages
• $20,757.73 as arrears of annual holiday pay
• $10,413.12 as arrears of public holiday pay
• $10,000 as a penalty
• $18,000 as compensation
• $37,200 as remainder of the penalty

Feng was also ordered to pay Zhang $1,000 and remainder of the penalty of $7,000.