| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 13 |
| Hearing date | 2 Aug 2011 |
| Determination date | 17 January 2012 |
| Member | K J Anderson |
| Representation | D Andrews ; R Childs, M O'Brien |
| Location | Hamilton |
| Parties | Baker v St John Central Regional Trust Board |
| Summary | DISPUTE – ARREARS OF HOLIDAY PAY – Applicant claimed full time permanent staff member of respondent and therefore entitled to statutory holiday entitlements – Applicant claimed statutory holiday entitlements should be backdated to point became permanent staff member – Respondent claimed applicant casual employee – Respondent station manager (“T”) asked applicant if wanted to cover some of T’s on-call shifts as casual paid officer (“CPO”) – Applicant agreed to do work and if paged would come and do job available or alternatively if did not want job was able to decline it – Applicant employed as CPO under terms and conditions of casual employment agreement – Respondent district operations manager (“R”) claimed full time employee would telephone CPOs to see who was available and first person contacted and willing to do work would be given it – Applicant claimed assisted respondent night time patient transfer officer (“A”) during one day shift and was shown how to do job – A offered applicant patient transfer officer (“PTO”) role – Applicant accepted role and was placed on two-on/two-off roster – Respondent operations team manager (“S”) claimed applicant occasionally did job as PTO on casual basis to fill in for employees who were unavailable – S claimed A did not have authority to offer applicant PTO role – S claimed casual employees placed on same roster as permanent employees in order to avoid casual employees being called at times when they were definitely not available – Respondent operations team manager changed applicant’s rostered time to four-on/four-off which aligned availability with roster used for permanent employees – Applicant became member of union and terms and conditions provided by collective employment agreement (“CEA”) – Applicant claimed employment status changed from being casual employee to permanent employee when placed on duty roster – Authority found fact applicant had name included on regular duty roster not conclusive of any mutual obligations between parties – Found applicant and on-call colleagues included on roster as result of own initiative rather than requirement of respondent – Found night time patient transfer operations depended to large extent on applicant being available on consistent and regular basis – Found examination of work patterns of applicant showed that while there were variations in regard to hours worked on given night call out there was remarkable regularity in hours worked on annual, monthly and weekly basis – Found because of work patterns established over more than four years parties did have mutual expectation of some continuity of employment – Found applicant’s work pattern sufficiently regular and continuous to make employment ongoing rather than casual – Found applicant in permanent part-time role and not casual employee – Found given applicant only usually worked on occasions that night time patient transfers required entitlements pursuant to Holidays Act 2003 would be conditional on events falling on what would otherwise be working day – Found not equitable or matter of good conscience to make order pertaining to payment of past holiday entitlements – Found parties should commence discussions to ensure respective requirements of CEA and Holidays Act 2003 met in regard to future entitlements due to applicant given finding regarding applicant’s employment status – Leave reserved for parties to obtain direction accordingly – Patient Transfer Officer |
| Result | Application granted (dispute) ; Application dismissed (arrears of holiday pay) ; Costs reserved |
| Main Category | Arrears |
| Statutes | Holidays Act 2003 |
| Cases Cited | Avenues Restaurant Ltd v Northern Hotel IUOW [1991] ERNZ 420;Canterbury Hotel, Hospital, Restaurant and Related Trades Employees' IUOW v Fell t/a Leeston Hotel [1982] ACJ 285;Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225;Rush Security Services Ltd t/a Darien Rush Security v Samoa [2011] NZEmpC 76 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Auckland_13.pdf [pdf 65 KB] |