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The Tragi-Comedy of Employment Law
The ancient Greeks had the right idea.
Each year they would hold a festival of comedy, permitting the great playwrights - such as Aristophanes - to delight the crowds with their witty satires.
At a different point in the year, there was a separate festival of tragedy - allowing the great masters like Aeschylus and Euripides to lament about the great ills of life ("Oh Zeus, why hast thou brought into the world to plague us such a tricksy thing as women?").
At some point between these two festivals there was also an epic tribute to the glory of wine - and one might imagine that, depending on its timing, it too would have had elements of comedy and tragedy.
How things have changed. We no longer have festivals of comedy - or of tragedy - of ancient Greek proportion. (Fortunately, however, history has been kinder to festivals of wine).
One can only imagine what might become of the great Greek masters now. Would Aristophanes be funny enough to have his own renovation show? - Could Euripides make it onto "Celebrity Treasure Island" (even with the benefit of a personal trainer?)
Nowadays, it seems that the great works of tragedy - and possibly also comedy - are left to be played out in employment law.
The recent decision of the Employment Tribunal in Vevers v Gomes Trading as Shiva Indian Restaurant (Unreported, Employment Tribunal, Auckland, 7 October 2003) perhaps provides an illustration of this.
The case involved a number of proceedings brought by a Labour Inspector, John Vevers, against the proprietor of an Indian Restaurant, Alexander Gomes. The Inspector made a number of allegations, all of which related to the employment at the restaurant of Ashish Ralli. The circumstances of Mr Ralli's employment - and the resolution of the Inspector's claims - both have elements of tragedy and comedy.
Ralli is an Indian citizen who arrived in New Zealand on 13 May 1998. He told the Employment Tribunal that he started work at the Shiva Indian Restaurant the day after his arrival - and continued working there until 13 August 1999. Ralli said that he usually worked seven days a week, up to 11 or 12 hours a day.
Ralli said that the tragedy of his circumstances was that for the first year of his work he was paid nothing. He did, however, obtain a work permit in May 1999 after which he received sporadic payments - including pay for two weeks at $350 per week.
His own case was not, however, consistent with his rights under the law. Ralli's passport recorded that he had entered New Zealand as a visitor, and that he was not to undertake employment in New Zealand. By his own admission, therefore, he had worked illegally at the restaurant.
Ralli did, however, have dealings with the Immigration Service - in the course of which it appeared he lied about his employment status. Ultimately he succeeded in obtaining a work permit. However, with what the Tribunal described as "audacity" Ralli did not allow the fact of his illegal employment to prevent him from making a complaint about his working conditions. As a result of his complaint, Vevers began an investigation.
Vevers did not regard the unusual circumstances of Ralli's employment as any sort of comedy. He required Gomes to produce records of the hours of Ralli's work, the wages that he had been paid, and the holidays that he had taken. Gomes was unable to satisfy these requests - as a consequence of which Vevers reached the conclusion that Ralli had not received holiday pay of almost $2,000 and minimum wages of over $21,000.
Gomes offered a host of defences. Significantly, he argued that he was not actually Ralli's employer - and that he was himself only a representative of the restaurant. That argument did not succeed, and the Tribunal found that for the purposes of the law Gomes was Ralli's employer.
Perhaps the most interesting aspect of the judgment relates to a question of enforceability. The Tribunal was presented with an illegal immigrant who, by his own admission, had no legal right to work in New Zealand - but who, nonetheless, sought compensation for the breach of certain obligations owed under New Zealand law. Tragedy - or comedy?
On this point, the Tribunal found in Ralli's favour. It held that Gomes was in breach of a number of different obligations owed under the minimum wage legislation, and the holidays legislation. It ordered Gomes to pay $14,700 in penalties to the Labour Inspector and $20,000 (together with interest) to Ralli.
There were two final twists.
First, even though the Labour Inspector was successful in making out certain claims for Ralli's benefit, there is no guarantee that Ralli will receive any of the payment ordered to him. The Tribunal noted that facts had emerged through the hearing that suggested that Ralli might have been involved in receiving payments from WINZ for a period of his employment. As a result, the Tribunal required the amounts to be paid to Ralli to be held until an appropriate inquiry could be carried out by WINZ (or another appropriate agency).
Secondly, the decision is unusual in itself because it is a judgment of the (now defunct) Employment Tribunal. The case relates to events which occurred as long ago as 1998. Despite proceedings being brought in 1999 (and a preliminary hearing occurring in 2000) there was an "unexplained delay" of 15 months in resuming the hearing - following which personal circumstances prevented the Tribunal Member from addressing the matter. In this sense, the lengthy delays perhaps represent something of a tragedy.
We are left to wonder whether, given the rather unusual facts of this case, Aristophanes or Euripides might turn this story into one of their works of art. For present purposes, however, perhaps the most recent generation of outstanding Greek citizens is more concerned with ensuring that our next Olympiad is neither a tragedy nor a comedy.
