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 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 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.