Yang (Helen) Feng v Dong Construction and Dong Wang [2026] NZERA 132

A detailed, plain-English summary of an Employment Relations Authority (ERA) determination. The full determination is embedded at the end of this page.

What happened

At the material time, the first respondent, Dong Construction Limited (Dong Construction), was an Accredited Employer under Immigration New Zealand's (INZ's) Accredited Employer Work Visa Scheme. It no longer has Accredited Employer status. The second respondent, Mr Dong Wang, is the sole director and shareholder of Dong Construction.

During a WeChat video call on 10 October 2023 Mr Wang verbally offered the applicant, Ms Yang (Helen) Feng, employment by Dong Construction as a Construction Worker. No written offer was made. Mr Wang sent Ms Feng's individual employment agreement (IEA) to her nominated agent in China along with a job token for the agent to use 2 to apply to Immigration New Zealand (INZ) for an Accredited Employer Work Visa (AEWV) for Ms Feng. Mr Wang did not provide any documents directly to Ms Feng.

Ms Feng's China based agent assisted her to obtain an AEWV, which she was granted on 13 November 2023.

Prior to obtaining her AEWV, Ms Feng had worked in China as a make-up artist. She had not previously done construction work. Mr Wang said Dong Construction's ability to dismiss an employee under a 90-day trial period provision without the employee being able to bring a dismissal grievance meant the respondents felt secure employing someone from China who did not have construction experience.

From 29 October 2023 Accredited Employers have been prevented from using trial period provisions in the employment agreements they offer AEWV employees. However, this restriction did not apply to job check or AEWV applications that had been made before that date, or job tokens issued before that date. This meant Ms Feng's employment agreement could legally contain a trial period provision because her application had pre-dated this restriction.

Ms Feng arrived in New Zealand on 2 December 2023. She was not provided with work or wages, and left New Zealand on 12 March 2024. Ms Feng made the following claims against the respondents: (a) Breach of s 12A of the Wages Protection Act 1983 (the WPA), because she claimed she had paid RMB 100,000 as a premium for her employment by Dong Construction; (b) Recovery of the employment premium from the respondents; (c) Penalty claims against each respondent for the breach of the WPA; (d) Unjustified disadvantage, breach of good faith and breach of her employment agreement by Dong Construction due to its failure to provide Ms Feng with work or wages after she arrived in New Zealand; (e) Penalty claims against Dong Construction for its breach of good faith and of her employment agreement; 3 (f) That Mr Wang aided and abetted Dong Construction's breaches of Ms Feng's employment agreement, so should have a penalty imposed on him under s 134(2) of the Employment Relations Act 2000 (the Act); (g) Unjustified dismissal claim against Dong Construction; (h) Leave to recover from Mr Wang personally any wage arrears or other money that Dong Construction defaults on paying her.

The respondents denied all of the claims against them. They said Ms Feng was the subject of fraud by her China based agent(s). The respondents said they had not sought or received any money or a premium for offering Ms Feng employment. The respondents said Ms Feng needs to recover the premium from the person(s) who requested and received money from her.

The respondents admit that Ms Feng did not perform any work and was not paid any salary between arriving in New Zealand on 2 December 2023 and her leaving New Zealand on 12 March 2024.

The respondents denied that Ms Feng was unjustifiably disadvantaged or unjustifiably dismissed, or that there had been breaches of employment standards, good faith, her employment agreement or of the WPA. The respondents said no penalties should be imposed on them. The Authority's investigation

Lujie is also known as "Jie Lu" and as "Yang Yan". The Authority has referred to Lujie as "Jie Lu" in this determination as that is the name that was used for her in another Authority determination Li v Fancy Fancy Construction Ltd.1 The applicant in the Fancy case said Jie Lu had requested and received employment premiums from him in breach of s 12A of the Wages Protection Act 1993 (the WPA). which also involved (among other things) premium related claims.

In Ms Feng's case it was Yan Liu who asked her to pay him RMB 100,000.00 for employment by Dong Construction while in the Fancy case it was Jie Lu who allegedly requested an employment premium form the applicant in those proceedings. Alleged premium

During the investigation meeting Ms Feng produced a transcript of what she said were WeChat recordings made by her husband, Zhang Yue, who lives in Australia of exchanges he allegedly had with Yan Liu, who at the material time was apparently using his wife's WeChat account to exchange voicemail messages with Zhang Yue.

Ms Feng was not personally involved in the alleged voicemail message exchanges she sought to rely on. She was not even in the same country as her husband when he was having the exchanges. Ms Feng has also been represented from the outset. Her statement of problem did not refer to these recordings. Her first witness statement also did not refer to these recordings. Ms Feng was not present for these exchanges between her husband (who was in Australia) and Qiao Yun's WeChat account. The transcript of the recordings was not included in the joint bundle Ms Feng had prepared for the investigation meeting.

The following issues are to be determined: (a) Did Dong Construction and/or Mr Wang request and/or receive an employment premium from Ms Feng in breach of s 12A of the Wages Protection Act 1983 (the WPA)? (b) If so, can Ms Feng recover the premium from the respondents? (c) Did Dong Construction unjustifiably disadvantage Ms Feng by requiring her to pay an employment premium in breach of the WPA? (d) Should a penalty be imposed on one or both respondents if they breached s 12A of the WPA? (e) Did Dong Construction breach Ms Feng's employment agreement by failing to provide her with work after she arrived in New Zealand? (f) If so, did Mr Wang aid and/or abet that breach of Ms Feng's employment agreement? (g) Did Dong Construction breach its good faith obligations to Ms Feng? (h) Should penalties be imposed on Dong Construction for any breaches of the employment agreement and/or good faith that have occurred? (i) Has there been a breach of employment standards? (j) If so, is Mr Wang 'a person involved in the breach of employment standards'? (k) If so, should Ms Feng be granted leave to recover any wage arrears or other money that Dong Construction defaults on paying her from Mr Wang personally? (l) Does the Authority have jurisdiction over Ms Feng's unjustified dismissal grievance? (m) If so, did Dong Construction constructively dismiss Ms Feng? (n) If so, was Ms Feng's dismissal justified? (o) If not, what remedies should Ms Feng be awarded? 12 (p) Should any remedies that may be awarded be reduced on the grounds of contribution? (q) What if any wage arrears is M s Feng owed? (r) What costs and disbursements should be awarded? Did Dong Construction and/or Mr Wang request and/or receive an employment premium from Ms Feng in breach of s 12A of the Wages Protection Act 1983 (the WPA)? Relevant law

Section 5 of the Act defines "employment standards", which provide minimum code protections for employees. For the purposes of this matter, the breaches of employment standards that occurred involved: (a) Section 64 of the Act (failure to retain signed employment agreement),. (b) Section 4 of the WPA (failure to pay wages when they became due without deduction). (c) Section 23 and 27 of the HA03 (failure to pay holiday pay on termination of employment). (d) Sections 44, 46 and 49 of the HA03 (failure to pay public holiday entitlements).

Ms Feng's employment agreement required Dong Construction to provide her with four weeks' notice of termination. That did not occur, because she was constructively dismissed without notice, which breached s 4 of the WPA.

Dong Construction's failure to keep a signed employment agreement or to pay Ms Feng her wages and HA03 entitlements breached employment standards. Was Mr Wang 'a person involved in the breach of employment standards'?

Accordingly, Mr Wang 'a person involved in a breach of employment standards' as defined by s 142W of the Act because he directly aided and abetted Dong Constructions' breaches of employment standards. Should Ms Feng be granted leave to recover any wage arrears or other money that Dong Construction defaults on paying her from Mr Wang personally?

Key issues

From 29 October 2023 Accredited Employers have been prevented from using trial period provisions in the employment agreements they offer AEWV employees. However, this restriction did not apply to job check or AEWV applications that had been made before that date, or job tokens issued before that date. This meant Ms Feng's employment agreement could legally contain a trial period provision because her application had pre-dated this restriction.

Jie Lu's influence over Ms Feng is evident from the advice that she gave Ms Feng to report her passport stolen after she had arrived in New Zealand as it would supposedly be easier for Ms Feng to travel if she had a passport that had been issued in New Zealand. Ms Feng did what Jie Lu suggested she do and reported her passport as stolen after arriving in New Zealand, even though it had not been stolen.

Ms Feng said on 25 January 2024 Yan Liu's wife, Qiao Yun, told her via a WeChat message that she (Ms Feng) had to pay him another $10,000.00 NZD for tax payments or she would not be given legal work. The Authority was not provided with a copy of this message. Ms Feng did not pay this amount and raised issues with this request separately with Yan Liu and also Mr Wang. Agent in China

Ms Feng alleged these recordings showed that Yan Liu was acting as a 'middleman' for Mr Wang, who denied that. The Authority considered there was a good chance the 10 comments Yan Liu allegedly made about Mr Wang were deliberately self-serving because Yan Liu was attempting to avoid responsibility for replaying Ms Feng the money he had taken off her. The transcript implied Yan Liu had experience in obtaining unlawful premiums from Chinese nationals, which is an issue INZ may wish to investigate.

Mr Wang appeared at the investigation meeting and was questioned by the Authority and cross examined by Ms Feng's representative. Ms Feng's husband and Yan Liu and his wife were not called as witnesses by Ms Feng in these proceedings. The double or triple heresay nature of the recordings was considered to be too remote to be accepted by the Authority over Mr Wang's direct evidence which had been tested under affirmation. 11 Issues to be determined

The following issues are to be determined: (a) Did Dong Construction and/or Mr Wang request and/or receive an employment premium from Ms Feng in breach of s 12A of the Wages Protection Act 1983 (the WPA)? (b) If so, can Ms Feng recover the premium from the respondents? (c) Did Dong Construction unjustifiably disadvantage Ms Feng by requiring her to pay an employment premium in breach of the WPA? (d) Should a penalty be imposed on one or both respondents if they breached s 12A of the WPA? (e) Did Dong Construction breach Ms Feng's employment agreement by failing to provide her with work after she arrived in New Zealand? (f) If so, did Mr Wang aid and/or abet that breach of Ms Feng's employment agreement? (g) Did Dong Construction breach its good faith obligations to Ms Feng? (h) Should penalties be imposed on Dong Construction for any breaches of the employment agreement and/or good faith that have occurred? (i) Has there been a breach of employment standards? (j) If so, is Mr Wang 'a person involved in the breach of employment standards'? (k) If so, should Ms Feng be granted leave to recover any wage arrears or other money that Dong Construction defaults on paying her from Mr Wang personally? (l) Does the Authority have jurisdiction over Ms Feng's unjustified dismissal grievance? (m) If so, did Dong Construction constructively dismiss Ms Feng? (n) If so, was Ms Feng's dismissal justified? (o) If not, what remedies should Ms Feng be awarded? 12 (p) Should any remedies that may be awarded be reduced on the grounds of contribution? (q) What if any wage arrears is M s Feng owed? (r) What costs and disbursements should be awarded? Did Dong Construction and/or Mr Wang request and/or receive an employment premium from Ms Feng in breach of s 12A of the Wages Protection Act 1983 (the WPA)? Relevant law

Findings and reasoning highlights

Ms Feng arrived in New Zealand on 2 December 2023. She was not provided with work or wages, and left New Zealand on 12 March 2024. Ms Feng made the following claims against the respondents: (a) Breach of s 12A of the Wages Protection Act 1983 (the WPA), because she claimed she had paid RMB 100,000 as a premium for her employment by Dong Construction; (b) Recovery of the employment premium from the respondents; (c) Penalty claims against each respondent for the breach of the WPA; (d) Unjustified disadvantage, breach of good faith and breach of her employment agreement by Dong Construction due to its failure to provide Ms Feng with work or wages after she arrived in New Zealand; (e) Penalty claims against Dong Construction for its breach of good faith and of her employment agreement; 3 (f) That Mr Wang aided and abetted Dong Construction's breaches of Ms Feng's employment agreement, so should have a penalty imposed on him under s 134(2) of the Employment Relations Act 2000 (the Act); (g) Unjustified dismissal claim against Dong Construction; (h) Leave to recover from Mr Wang personally any wage arrears or other money that Dong Construction defaults on paying her.

The following issues are to be determined: (a) Did Dong Construction and/or Mr Wang request and/or receive an employment premium from Ms Feng in breach of s 12A of the Wages Protection Act 1983 (the WPA)? (b) If so, can Ms Feng recover the premium from the respondents? (c) Did Dong Construction unjustifiably disadvantage Ms Feng by requiring her to pay an employment premium in breach of the WPA? (d) Should a penalty be imposed on one or both respondents if they breached s 12A of the WPA? (e) Did Dong Construction breach Ms Feng's employment agreement by failing to provide her with work after she arrived in New Zealand? (f) If so, did Mr Wang aid and/or abet that breach of Ms Feng's employment agreement? (g) Did Dong Construction breach its good faith obligations to Ms Feng? (h) Should penalties be imposed on Dong Construction for any breaches of the employment agreement and/or good faith that have occurred? (i) Has there been a breach of employment standards? (j) If so, is Mr Wang 'a person involved in the breach of employment standards'? (k) If so, should Ms Feng be granted leave to recover any wage arrears or other money that Dong Construction defaults on paying her from Mr Wang personally? (l) Does the Authority have jurisdiction over Ms Feng's unjustified dismissal grievance? (m) If so, did Dong Construction constructively dismiss Ms Feng? (n) If so, was Ms Feng's dismissal justified? (o) If not, what remedies should Ms Feng be awarded? 12 (p) Should any remedies that may be awarded be reduced on the grounds of contribution? (q) What if any wage arrears is M s Feng owed? (r) What costs and disbursements should be awarded? Did Dong Construction and/or Mr Wang request and/or receive an employment premium from Ms Feng in breach of s 12A of the Wages Protection Act 1983 (the WPA)? Relevant law

At the material time Dong Construction was an Accredited Employer, although it no longer is. The respondents enticed Ms Feng to come to New Zealand with the promise of work and wages but then failed to deliver either. It is necessary and appropriate to impose a penalty on Dong Construction for its breaches of Ms Feng's employment agreement and of good faith in order to punish it, express public disapproval of its actions and to deter such conduct in future.

Section 133A of the Act sets out the factors the Authority must have regard to when assessing penalties. The breach of good faith and of Ms Feng's employment agreement for which a penalty is to be imposed involved the same conduct and are being penalised under the same Act.

Ms Feng is granted leave pursuant to s 142Y(2)(a) of the Act to recover from Mr Wang personally any wage arrears and other money that she has been awarded in this determination but which Dong Construction defaults on paying her. Does the Authority have jurisdiction over Ms Feng's unjustified dismissal grievance or did the trial period clause in her employment agreement preclude that? Relevant law

The trial period provision in Ms Feng's employment agreement did not prevent her from pursuing a dismissal grievance, because the respondents could not establish that she had received a full copy of the employment agreement which had the trial period in it. Accordingly, the Authority did have jurisdiction over Ms Feng's constructive unjustified dismissal claim. Was Ms Feng constructively dismissed?

Justification is to be objectively assessed in light of the justification test in s 103A(2) of the Act. A fair and reasonable employer is expected to comply with its contractual and statutory obligations. These include the good faith obligations in s 4 of the Act and each of the procedural fairness tests in s 103A(3) of the Act.

Dong Construction's constructive dismissal of Ms Feng was substantively and procedurally unjustified. 21 What remedies should Ms Feng be awarded? Mitigation of loss and lost remuneration

Accordingly, no award of lost remuneration has been made. Distress compensation

Dong Construction is ordered to pay Ms Feng $18,500.00 distress compensation under s 123(1)(c)(i) of the Act to compensate her for the humiliation, loss of dignity and injury to feeling she suffered as a result of her unjustified constructive dismissal. Should any remedies that may be awarded be reduced on the grounds Ms Feng had contributed to the situation that gave rise to her personal grievance claim?

The Authority made the following findings: (a) Ms Feng's premium claims against these respondents did not succeed. (b) Dong Construction breached Ms Feng's employment agreement by failing to provide her with work and/or wages from 8 January 2024 to 11 March 2024. (c) Dong Construction's failure to provide Ms Feng with work and/or wages breached its good faith obligations in s 4 of the Act. (d) Dong Construction is ordered to pay a penalty of $1,000.00 to the Crown bank account for its breaches of Ms Feng's employment agreement and of its good faith obligations. (e) Mr Wang aided and abetted Dong Construction's breaches of Ms Feng's employment agreement. (f) Mr Wang is ordered to pay a penalty of $500.00 under s 134(2) of the Act for aiding and abetting Dong Construction's breaches of Ms Feng's employment agreement. This penalty is to be paid directly to the Crown bank account. (g) Dong Construction engaged in multiple breaches of employment standards, as defined in s 5 of the Act. 24 (h) Mr Wang was 'a personal involved in breaches of employment standards', as defined by s 142W of the Act. (i) Ms Feng has been given leave to recover from Mr Wang personally any part of the $13,799.70 wage arrears and interest she has been awarded in this determination, or ongoing interest on any part of that amount which remains outstanding from 6 March 2026 onwards until it has been paid in full, that Dong Construction defaults on paying her. (j) The trial period provision in Ms Feng's employment agreement was invalid as she had not been given a copy of the IEA and the trial period provision had not been raised with her prior to her employment ending. (k) Dong Construction constructively dismissed Ms Feng. (l) Dong Construction's dismissal of Ms Feng was procedurally and substantively unjustified. (m) Within 28 days of the date of this determination, Dong Construction is ordered to pay Ms Feng $32,299.70, consisting of: (i) $8,008.20 gross wage arrears for the 9 weeks from 8 January to 8 March 2024, as per the payment provisions in the employment agreement. (ii) $3,559.20 gross notice pay arrears, as per the notice requirements in the employment agreement. (iii) $925.39 gross holiday pay arrears as per ss 23 and 27 of the HA03. (iv) $1,306.91 interest from 11 March 2024 to the date of this determination. (v) $18,500.00 without deduction as distress compensation under s 1213(1)(c)(i) of the Act. What costs and disbursements should be awarded?

Ms Feng as the successful party is entitled to a contribution towards her actual legal costs. The parties should attempt to agree on costs, based on the notional daily tariff of $4,500.00 for this one day investigation meeting.

Orders and payments mentioned

(No payment amounts were identified in the orders section.)

Practical takeaways

• Dismissal justification is assessed under s 103A: what a fair and reasonable employer could have done in all the circumstances.
• Trial period cases are technical. If the written requirements are not met, the trial defence can fail.
• Constructive dismissal requires a causal link: the employer's conduct must effectively force the resignation.
• Unjustified disadvantage requires unjustified employer conduct and a real disadvantage (loss or detriment).
• Read the orders section carefully: it controls the payments, deadlines, and any compliance steps.

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Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.