A man employed as an assistant mechanic despite not being able to fix or drive vehicles has successfully argued he had been disadvantaged by his employer, but won't be compensated because he misled them about his abilities.
Dapeng Qin told the Employment Relations Authority he had been unjustifiably dismissed from his job at Trust Worthy on April 4, 2012 - after just a few days work - claimed he had been disadvantaged and sought compensation.
According to a recent authority decision, Qin arrived at the mechanics without warning on March 16, having seen a job advertisement on a Chinese website, and during an interview said he was ''capable of doing things which he was not capable of doing''.
The mechanics said Qin told them he could drive and was an experienced gearbox repairer. Qin denied this and told the authority he'd said he had experience designing gearboxes for small cars but had no experience fixing them. The authority said Qin had a Chinese driving licence but may have got it 'by slight of hand''.
The mechanics told the authority had they known Qin couldn't drive or fix cars they wouldn't have hired him - initially on a week long trial without pay.
Qin said he didn't think he was on a trial at all.
Another matter of concern to Trust Worthy was that Qin hadn't informed them he could work only for a period of three months due to his visa.
Qin began working for the company on April 2 and his boss was ''immediately discouraged'' by his performance, the decision reads.
''It transpired very early on in the relationship that Mr Qin had no such abilities at all and that he had not even the basic knowledge about the workings of motor vehicles.
''Mr Xu (the employer) said that Mr Qin could do virtually nothing to assist in the work of his business and plainly knew nothing at all about cars or how to fix them. He also said that Mr Qin was lazy, unwilling to learn, more interested in texting on his cellphone and yarning to customers and taking long lunch breaks than learning how to do the job required of him.''
At the end of Qin's second day he met with his boss and was told gently ''in the Chinese way'' that things weren't working out. Qin asked for a further day to prove himself which was granted, but at the conclusion of the following day's work, he was fired.
The authority found Qin was an employee of Trust Worthy, rather than simply a volunteer and was critical of their hiring practices. Probationary periods were lawful if the rules governing such arrangements were followed, it found.
The authority found Qin misrepresented his abilities and had he been honest, he wouldn't have been employed.
''It is difficult to see how Trust Worthy can be criticised for bringing the relationship to an end after finding out that not one but three essential terms of the employment had been misrepresented, or potentially misrepresented,'' the decision reads.
However, they found dismissal for those misrepresentations may still be unjustified if they weren't essential in the formation of Qin's contract.
The authority found Qin was entitled to wages for the hours worked and Trust Worthy were unjustified in withholding that and had disadvantaged him.
However, he didn't deserve to be compensated.
''It is difficult not to conclude that Mr Qin's responsibility for the personal grievance is not 100 per cent,'' the authority said.
- © Fairfax NZ News
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