| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 202 |
| Hearing date | 8 Dec 2011 |
| Determination date | 15 December 2011 |
| Member | P Cheyne |
| Representation | J-A Duff (in person) ; L Patterson (in person) |
| Location | Queenstown |
| Parties | Duff (Labour Inspector) v Over the Top Ltd and Anor |
| Other Parties | Patterson |
| Summary | ARREARS OF HOLIDAY PAY – Second respondent (“P”) failed to provide copy of employment agreement (“EA”) and only provided partial wage and time records – P joined to proceedings given delay and limited compliance – Applicant re-engaged by first respondent (“T”) and at agreed rate of pay plus holiday pay – Applicant commenced work and payslips showed holiday pay accruing – Applicant received draft EA – P asked applicant to discuss any points arising from EA by specified date otherwise would assume all provisions acceptable – Applicant did not respond – Applicant resigned – T claimed applicant either working under pre-existing arrangement under which holiday pay paid on “pay as you go” basis or applicant working under unsigned EA which applicant breached by failing to give stipulated period of notice of resignation – T claimed after allowing for deduction under EA for default and another deduction applicant consented to, T owed applicant $908 arrears of holiday pay – Authority found pay records showed $5,908 holiday entitlement – Applicant acknowledged $1,500 debt and by consent amount to be deducted from arrears of holiday pay – Found T not entitled to further deduction – Found applicant never gave written authorisation pursuant to Wages Protection Act 1983 for deduction for default in giving notice of resignation – $4,408 arrears of holiday pay due and owing – PENALTY – Applicant sought penalty for failure to provide holiday and leave records – Found no proof T required to produce records and documents – Found high standard of proof required – No penalty awarded – Found holiday pay accrued in usual way so no breach of obligation to pay holiday pay with regular pay – No penalty awarded – Found no penalties sought for other breaches of Holidays Act 2003 – Found P less than helpful to applicant Labour Inspector – Found conduct pre-dated s134A Employment Relations Act 2000 – Found no penalty awarded for P’s partial compliance with Authority’s directions – Helicopter Pilot |
| Result | Application granted (arrears of holiday pay) ; Arrears of holiday pay ($4,408) ; Application dismissed (penalties) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s134A;ERA s229(1)(d);ERA s229(2);ERA s229(3);Holidays Act 2003 s23;Holidays Act 2003 s27;Holidays Act 2003 s28;Holidays Act 2003 s75;Holidays Act 2003 s82;Holidays Act 2003 s83;Wages Protection Act 1983 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Christchurch_202.pdf [pdf 34 KB] |