Tuesday, June 18, 2024

Asian cuisine expert paid $116k for visa – then worked 14-hour days for fractional pay

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By Shannon Pitman, Open Justice multimedia journalist of

motion chefs of a restaurant kitchen

A chef who worked 70-hour weeks for fractional pay has been awarded a huge damages payout by the Employment Relations Authority.
Photo: 123RF

A seasoned Asian chef with three decades of culinary experience and a flourishing business in China made a life-altering decision to relocate to New Zealand for his child’s future, despite the considerable sacrifice involved.

In pursuit of a work visa, Jian Zhang paid his employer $116,000, only to find himself compensated for a fraction of the hours he worked after enduring long shifts exceeding 70 hours per week.

Now, the Employment Relations Authority (ERA) has ruled Tao Echo Feng and Fai Calvin Lam, the owners of Panda Restaurant (PRL) in Browns Bay, violated numerous employment regulations, resulting in damages totalling a whopping $295,000.

Feng and Lam asserted the chef was a shareholder seeking financial gain, but the ERA dismissed these claims.

Zhang’s lawyer David Fleming told NZME migrant workers are becoming more confident about asserting their rights in New Zealand.

“The authority’s decision was very pleasing for my client, and I hope that he is able to recover what is owing to him without the need for further litigation.

“In my experience, this was a very large premium, but an employee being asked to pay a premium is unfortunately commonplace. Thousands of people’s right to be in New Zealand is dependent on their particular employer, and as long as that remains the case, some employers will take advantage of the power it gives them.”

Zhang, a Chinese national, began his culinary journey in the late 1980s, specialising in Sichuan cuisine.

By 2018, he had accumulated 30 years of cooking expertise managing his company, Jushanyuan Food & Beverage Management Ltd, in China.

He encountered Lam in China which led to an opportunity in New Zealand, where Lam and Feng envisioned Zhang’s skills would be invaluable for their new restaurant venture.

Intrigued by the opportunity, especially the prospect of his child receiving an education in New Zealand, Lam suggested Zhang could secure a work visa and agreed to pay them $30,000.

Later that year, Zhang visited New Zealand, sending his 16-year-old son to a language school and scouting locations in Browns Bay with Lam and Feng.

Zhang made three additional payments totalling $83,000 for restaurant equipment, which he believed to be loans and feared they, if not paid, could jeopardise his chance to immigrate to New Zealand and recover his dues.

In March 2018, Zhang began working at Panda Restaurant on a salary of $62,400.

However, after months into the job working 14-hour days, seven days a week on his own, Zhang went to Feng to ask for an assistant as he was physically exhausted.

Zhang also noticed he was only being paid $728 per week, which did not equate to the agreed-upon salary or reflect the hours he was working.

When he approached the couple, they agreed to pay him $300 extra cash a week, and Zhang told the ERA he did not question his pay any further because of his lack of knowledge of New Zealand law.

Over the next three years, Zhang toiled tirelessly, lacking proper breaks and support, as Feng and Lam shifted focus to a new venture in Newmarket, Kuai Dian Eatery.

Zhang’s requests for assistance were met with dismissal, and when he sought repayment for his loans, Feng threatened deportation if he pursued the matter.

Following immense stress, Zhang resigned, only to be denied access to payroll records by Feng, who claimed to not have a payroll system.

The ERA found Panda Restaurant’s breaches of employment standards were intentional and Feng, an experienced business operator, failed to uphold well-known obligations regarding wages and time records.

The authority rejected claims Zhang was a shareholder rather than an employee, as evidenced by written employment agreements and PRL’s failure to provide compliant records.

“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. 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,” the decision said.

Panda Restaurant Limited was ordered to pay Zhang:

  • $116,854 debt owed for the premium payments;
  • $74,645.69 in arrears of wages;
  • $20,757 in arrears for holiday pay;
  • $10,413 in arrears for public holidays;
  • $18,000 in compensation;
  • $47,200 in penalties to the Crown.

Tao Echo Feng was ordered to pay:

  • $1000 to Zhang;
  • $7000 to the Crown.

Feng and Lam did not respond to NZME requests for comment.

* This story originally appeared in the New Zealand Herald.

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