Waikato Business News November/December 2017

WAIKATO BUSINESS NEWS November/December 2017
43
Immigration New Zealand criticised
in dismissal case
EMPLOYMENT LAW
A dismissal for most employees will usually
cause significant stress and financial loss.
For foreign workers, whose ability to remain
in New Zealand is often dependent on their
employment with a specified employer, the
stakes are considerably higher.
Not surprisingly, dependence
on an employer
for not just a job, but
for the right to stay in New
Zealand, means many foreign
workers are vulnerable, and will
often forego their legal rights
just to stay on the right side of
This case should
serve as a strong
warning to employers
that dismissing a
foreign worker by
seeking cancellation
of their visa, can be a
costly, not to mention
unethical, exercise.
their employer. Regrettably,
there are also many unscrupulous
employers who exploit that
vulnerability and also threaten
employees that they will take
steps to have their visas cancelled.
In the case of Pandit v
Swamy, Mr Pandit worked as
a chef at the Satya restaurant
in Mount Eden Auckland from
April 2013 to September 2016.
Mr Swamy recruited Mr Pandit
for the role after an interview
in India in late 2012. Mr Pandit
had three consecutive work
visas issued between 2013 and
2016. The latest of these work
visas was issued on 13 April
2016 with an expiry date of
April 2018.
Mr Pandit left New Zealand
on September 21, 2016 for an
extended period of leave in India,
visiting his wife and child.
He was due to return to New
Zealand on January 5, 2017 and
continue working in the restaurant
and intended bringing his
wife and child with him to live
in New Zealand.
However, on November 2,
while Mr Pandit was still in India,
Mr Swamy sent and email
to Immigration New Zealand
(INZ), asking them to cancel Mr
Pandit’s visa. The email alleged,
based on an unsubstantiated rumour
it appears, that Mr Pandit
had manipulated the results of a
diabetes test to pass a medical
test for his visa. Mr Swamy’s
email also stated he had heard
that Mr Pandit’s wife had been
operated on and that Mr Pandit
did not want to disclose her
medical condition. The email
concluded with… “based on
this information, we request to
terminate his visa as we will
not be employing him further”.
Mr Swamy also asked that his
email be kept anonymous and
to be advised when action had
been taken.
In a second email the following
day, Mr Swamy advised
INZ that “…Mr Babu Pandit’s
employment is terminated due
to the reasons provided.” Mr
Nathan Fu from INZ asked Mr
Swamy for a signed letter confirming
the information provided,
which Mr Swamy provided
on November 4 and which also
stated “… we would therefore
wish to terminate his services.”
Mr Fu from INZ then
emailed a letter to Mr Pandit in
India on November 7, simply
stating he had been advised he
was no longer working for Satya
restaurant, his visa would therefore
be cancelled and he was
given until November 14 to
comment. Mr Fu also informed
another INZ colleague of the
situation, who took immediate
steps to put a border alert in
place which would prevent Mr
Pandit from boarding any plane
bound for New Zealand.
INZ’s letter made no mention
of Mr Swamy’s allegations
and Mr Pandit said during the
Authority investigation that
he did no receive this email.
He did, however, receive an
emailed letter on November
16 which informed him his visa
had been cancelled.
During the Authority’s investigation,
it found that Mr
> BY ERIN BURKE
Employment lawyer and director at Practica Legal
Email: erin@practicalegal.co.nz phone: 027 459 3375
Pandit had taken a diabetes
test when applying for his visa
which had shown elevated
blood sugar levels, requiring
him to take retake the test eight
weeks later. Mr Pandit’s GP
recommended changes to Mr
Pandit’s diet, exercise and iron
supplement tablets. Mr Pandit
followed his GP’s recommendations
and took the diabetes
test eight weeks later and the
results were satisfactory.
With regards to Mr Pandit’s
wife, it transpired that although
she underwent surgery for a hernia
in 2009, she had not had surgery
since then and there did not
appear to be any evidence that
Mr Pandit was failing to disclose
any required information.
In a determination dated 10
November 2017, the Authority
was understandably critical of
both Mr Swamy and INZ’s conduct
in this matter. Mr Swamy
appeared to have either directly
or indirectly dismissed an
employee, without any process
or justification, by making unfounded
allegations to INZ and
by requesting INZ to cancel Mr
Pandit’s visa. The Authority ordered
that Mr Pandit be awarded
$18,465 net in lost remuneration
and $15,000 for hurt and
humiliation. Mr Pandit was also
invited to seek costs.
The Authority does not have
the jurisdiction to take any action
regarding INZ’s conduct,
however, the decision was critical
of INZ for failing to make
sufficient attempts to verify Mr
Swamy’s allegations against
Mr Pandit, failing to take steps
to ensure Mr Pandit had received
the November 7 letter
before proceeding to cancel his
visa and failing to include Mr
Swamy’s allegations for Mr
Pandit to respond to.
This case should serve as a
strong warning to employers
that dismissing a foreign worker
by seeking cancellation of their
visa, can be a costly, not to mention
unethical, exercise.
It’s beginning to look a lot like Christmas
“Christmas is around the
corner”, bet you’ve heard
a lot of that recently. So,
what is your business doing
about it? If your business does
not have anything planned for
your clients over this festive
season then it’s not too late,
you may still have a chance.
All you need is a flux capacitor,
a DeLorean, and some
form of guide that contains
time tried and tested collateral
which gives you an advantage
over your competition
and helps you win… more
business.
There are so many things
that you can give to loyal customers
to further strengthen
your relationship with them.
From Christmas cards to
Christmas hampers and tickets
to super awesome holiday
events or holidays, the possibilities
are endless. So how do
you decide?
If you are a service provider
think of how you can incorporate
Christmas into your
services. For example, if you
are a cleaning company, you
MARKETING MATTERS
> BY MEHRDAD BEHROOZI
Mehrdad (Merv) Behroozi is general manager of Hamilton graphic
design and web development company E9. Phone: 07 838 1188
Email: merv@e9.nz
could do a special post-Christmas
oven cleaning offer for
those of us who “made” a
roast. Or, you could offer a
pre-Christmas home clean because
nobody wants the rest
of their family to see how they
really live!
If you are a retailer you
could offer free gift wrapping.
Or you could give your store a
Christmas feel by theming the
uniforms, décor, and greeting
to something more Christmassy.
The one thing you should
not do, is play ambient Christmas
music. Research shows it
really bothers a large number
of people resulting in them
cutting down on their shopping
times. That means fewer
sales for you.
The most important thing
to remember about a gift or
reward you give to your loyal
customers is that it should
have value for them. It should
be something they will use regularly.
This ensures that your
marketing spend goes further
because your brand is always
in the mind of your customer.
For example, a branded box of
delicious chocolates may last
approximately 1.67 minutes
in my home and at the end of
that the empty box is binned.
But an annual diary or writing
pad is going to last much
longer and every time I see it,
it’s going to remind me of the
business.
You could, for example,
provide clients with a branded
calendar with important dates
for their industry pre-marked
into it. You could mark the
calendar with days when your
business is going to be open
while others are going to be
shut. Or days on which you
are open for longer or shorter.
The possibilities are endless,
just as long as you understand
what your customer really
wants and how you can use
Christmas and New Year to
get into their minds and hearts.
Of course, if you find yourself
confused and frustrated
by decision making then
there is nothing better than a
gift card. Give your customer
a gift card because research
shows that 61 percent of gift
card holders spend more than
the amount of the card!
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021 0577198 www.liquidateit.co.nz
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