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Going for Penalties - by Lawrence Anderson



Mr Jacob Pietras sought a claim in the Employment Relations Authority against Ms Tanya Vegar (aka Tanya Struck) for unpaid wages and holiday pay.


The wage arrears claim was quantified as being unpaid wages of $113.40 and holiday pay of $9.07 for work that Mr Pietras undertook having completed six hours work on 25 and 26 June 2020. For most this will not sound like a lot of money to be chasing, but as a student, it must have been significant to Mr Pietras having undertaken casual work and then having not being remunerated for it when the money was needed.


The reported decision https://www.employment.govt.nz/assets/elawpdf/2021/2021-NZERA-539.pdf as

published in the Authority public database as at 1 December 2021 describes that the nature of the work that Mr Pietras undertook, although a very short tenure, was in surveying and petition collection. Mr Pietras came about this

role through the Student Job Search website that connects, in its words, talented students and curious employers. The job was advertised sometime in June 2020 seeking a hardworking and reliable individual to undertake the work described. Contained within the advertisement was an element of urgency that the job was to be completed before the end of the week.


A Google search has yielded some further insight into what the petition was for which Mr Pietras was tasked with collecting signatures. It is reported that 202 signatures were obtained in total (Parliament website https://www.parliament.nz/en/pb/petitions/document/PET_98068/petition-of-tanya-struck-stop-trading-new-zealand-away). The petition was short lived but involved specifically Ms Vegas (Struck) seeking to: pass legislation to protect [New Zealand’s] national security and sovereignty from China by reviewing current trade deals; halting Chinese investments and influence; [cease of] foreign ownership of critical assets; reporting on foreign-owned assets, trade deals and political donations.


Mr Pietras was not paid for his efforts and his endeavours to seek payment from Ms Vegar did not come to any fruition between the parties. Mr Pietras had difficulties contacting Ms Vegar to recover his small claim of wage arrears and holiday pay from her which became further protracted whereby the Authority and Mr Pietras had some difficulty serving the proceeding on Ms Vegar.


Where the Authority is unable to have reliably served a proceeding on a respondent party, the Authority will hand the responsibility of service back to the applicant to then serve the respondent. Where an applicant has to go to this length, a sworn affidavit of service is required notifying the Authority that service has been effected.


As it transpired, Ms Vegar’s known whereabouts were known only to the extent that she now resided in Spain, but her specific address was unknown to Mr Pietras. Fortunately for Mr Pietras the Authority accepted that service had been performed. This being service both through Ms Vegar’s agent, her father (via email), and a residential address that Ms Vegar had title to. Mr Pietras came to know that Ms Vegar’s father was active in dealing with a tenant occupying Ms Vegar’s rental property. Once satisfied that service had been effected and that the respondent had been given notice and an opportunity to reply, no reply was received from Ms Vegar. The Authority continued to investigate Mr Pietras’ claim on the basis that it was appropriate to continue and that a respondent should not be capable of running away from its obligations simply by ignoring them.


The matter proceeded on the papers and the wage claim was made out.


Turning now to the more lucrative element of Mr Pietras’ claim, Mr Pietras had also applied to the Authority in his original application to seek penalties against Ms Vegar. Perhaps this may have been motivated from the advice of Mr Pietras counsel, Mr Joshua Pietras that represented him. Penalties are often appropriate for deliberate breaches. As an Employment Law Advocate I too look for opportunities to seek penalties where reasonable and the circumstances permit.


The Authority in this matter came to find that a penalty was appropriate on the basis of a globalized breach. While it can be said to there having been breaches of multiple acts (Minimum Wage, Wages Protection, Holidays), the

breach was in summary a failure to make a single payment for Mr Pietras’ job of short tenure.


Section 133A of the Employment Relations Act 2000 requires the Authority to have regard to the object of the Act, the nature and extent of the breach, whether they were intentional or not, the nature and extent of any loss or damage, steps to mitigate effects of the breach, circumstances of the breach and any vulnerability and finally previous conduct.


The case here as it appeared was that Ms Vegar had deliberately avoided and evaded Mr Pietras’ attempts to seek payment for his outstanding wages.


Having weighed the relevant factors in determining that a breach had occurred and assessing what quantum of penalty should be awarded in the circumstances, the Authority came to a figure of $4,000. On the basis that Mr Pietras on the evidence is having described as going to inordinate lengths to recover what was rightfully his wages, which should never have been in dispute given the amount involved, the Authority found it appropriate that Mr Pietras be apportioned to pocket half of the penalty, that being $2000.


The result is that Ms Vegar has been ordered to pay to Mr Pietras the sum of $122.47 gross for unpaid wages and holiday pay; and a penalty of $4,000 ($2,000 payable to the Crown and $2,000 payable to Mr Pietras). Payments to

be made no later than 4:00 PM Wednesday 12 January 2022.


The Authority reserved the issue of costs and we may see a further determination after the aforementioned date as to what Mr Pietras costs might have been and to what level Mr Pietras would be awarded a contribution to his costs in pursuing this claim, for what originally was $122.47 unpaid gross wages. Without knowing of the full extent of time spent pursuing the application, my prediction is this will likely be half the notional daily tariff of $2,250.


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