| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 65 |
| Hearing date | 9 Mar 2012 - 27 Mar 2012 (2 days) |
| Determination date | 17 April 2012 |
| Member | P Cheyne |
| Representation | Q Davies, L Murdoch ; A Russell |
| Location | Blenheim |
| Parties | Dolev v Netafim Australia PTY Ltd |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay – Applicant claimed entitled to long service leave (“LSL”) in accordance with parties’ employment agreement (“EA”) – Applicant claimed respondent incorrectly calculated holiday pay as calculation of LSL entitlement incorrect – Parties entered into several employment agreements (“EA”) – Applicant previously worked for respondent in another country - First and second EAs stated LSL entitlements would be “rolled over” – Authority found first EA stated applicant would continue to accrue LSL although employed under new jurisdiction – Third EA expressly stated applicant entitled to 42 days’ LSL and would be transferred to applicant’s annual leave entitlement – Found change in EA LSL clause showed parties intended that further accrual of LSL entitlement under previous jurisdiction would cease – Found applicant not entitled to further LSL after 42 days’ LSL transferred to applicant’s annual leave entitlement – Found applicant paid all annual leave entitlements when employment ended - First and second EAs stated respondent would pay applicant’s home office expenses - First and second EAs stated respondent would pay part of applicant’s salary to applicant’s wife (“X”) to reduce applicant’s tax liability – Respondent’s managing director commenced employment after second EA in place and wanted to cease payments to X – Parties agreed applicant would be paid home office allowance so X payments would cease but applicant’s overall income would not be reduced - Third EA stated applicant would be paid “home office allowance” – Applicant claimed allowance was actually part of applicant’s gross earnings, as intended to be more than home office expenses incurred by applicant, and should have been taken into account when respondent calculated holiday pay – Found parties’ allowance arrangement sham to avoid tax liability - Found in interests of equity and good conscience Authority could not order allowance be taken into account when determining applicant’s holiday pay entitlement – Applicant claimed respondent owed applicant commission payments – Found commission should be determined in accordance with third EA – Found no evidence commission payments due and owing – Respondent deducted costs of relocating applicant’s pets from applicant’s wages – Found respondent entitled to make deduction but holiday pay calculations should have been made based on gross before deduction – Respondent to pay applicant $471 arrears of holiday pay – Found arrears of holiday pay should be offset by respondent’s previous $1,090 overpayment of applicant’s wages - RECOVERY OF MONIES – Applicant sought reimbursement of travel expenses – Applicant left New Zealand to travel to work for other respondent branch (“Y”) – Applicant’s flight delayed due to political unrest and applicant incurred further accommodation and travel costs and quarantine costs – Respondent reimbursed applicant for accommodation, quarantine and transport costs but refused to reimburse applicant for phone calls and meals – Found insufficient evidence for some claims – Respondent to pay applicant $754 recovery of monies – Found recovery of monies should be offset by remainder of respondent’s previous $1,090 overpayment of applicant’s wages - Found respondent did not agree would reimburse applicant for cost of relocating pets – Applicant sought reimbursement of travel expenses while overseas before employment in New Zealand terminated – Found respondent allowed applicant to travel overseas to make arrangements with Y during employment in exchange for applicant deferring departure – Found no evidence further travel expenses outstanding – Found applicant could be entitled to payment under respondent’s executive incentive scheme but insufficient evidence to determine entitlement – Found appropriate for parties to treat applicant’s entitlement as separate employment problem and proceed with mediation - South Island Sales Area Manager |
| Result | Applications partially granted ; Arrears of holiday pay ($471.44)(amount to be offset by $1,090 overpayment of applicant’s wages) ; Recovery of monies ($754.65)(amount to be offset by remainder of $1,090 overpayment of applicant’s wages) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s157;ERA s159;ERA Second Schedule cl4A;ERA Second Schedule cl11;Employment Relations Authority Regulations 2000;Holidays Act 1981;Holidays Act 2003 s14;Holidays Act 2003 s14(a)(ii);Holidays Act 2003 s14(c)(i);Holidays Act 2003 s14(c)(ii);Holidays Act 2003 s24;Holidays Act 2003 s25;Holidays Act 2003 s26;Judicature Act 1908;Property (Relationships) Act 1976 s2 |
| Cases Cited | New Zealand Professional Firefighters Union v New Zealand Fire Service Commission [2011] NZEMPC 149 |
| Number of Pages | 19 |
| PDF File Link: | 2012_NZERA_Christchurch_65.pdf [pdf 91 KB] |