| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 131 |
| Hearing date | 2 Dec 2010 |
| Determination date | 29 June 2012 |
| Member | M B Loftus |
| Representation | K Coultson ; T Cleary |
| Location | Christchurch |
| Parties | Briggs and Ors v Silver Fern Farms Ltd |
| Summary | DISPUTE – Whether respondent could request applicants use annual leave entitlement, rather than reassign applicants to other duties, while applicants received ACC payments and suffered work-related injuries – Authority found no evidence applicants dismissed and treated by respondent as if on leave – Found respondent’s previous practice of reassigning injured employees to other duties became implied obligation - Found alternatively if applicants had been dismissed respondent’s failure to consult with applicants about proposal to change reassignment practice would have rendered dismissals unjustified – Found applicants entitled to have annual leave balance reinstated - Question answered in favour of applicants |
| Abstract | Applicants usually paid eight per cent of earnings in lieu of holiday pay as had not completed full year of service since being re-employed by respondent for another season. Applicants suffered work injuries from previous season’s employment with respondent and certified as incapable of performing pre-injury duties. Parties’ collective agreement stated ACC compensation would be topped up so equal to previous wages. Applicants claimed that respondent practice was to assign injured employees to maintenance and repair tasks during respondent off-season. Applicants claimed told would not be reassigned and required to use annual leave entitlements while injured. Respondent denied applicants required to use annual leave and claimed applicants were dismissed at end of season and previous practice no longer in place.;AUTHORITY FOUND –;DISPUTE: Authority noted delay in issuing determination due to Christchurch earthquake. Authority could determine parties’ dispute. No evidence applicants dismissed and were treated by respondent as if on leave. Respondent’s previous practice of reassigning employees became implied obligation. Did not need to determine if applicants seasonal employees as irrespective of status applicants not dismissed. Alternatively, if applicants had been dismissed respondent’s failure to consult with applicants about proposal to change reassignment practice would have rendered dismissals unjustified. Applicants entitled to have annual leave reinstated. Question answered in favour of applicants. Leave reserved for applicants to return to Authority to determine quantum if required. |
| Result | Question answered in favour of respondent ; Costs reserved |
| Main Category | Dispute |
| Statutes | Accident Compensation Act 2001 s75;Accident Compensation Act 2001 s133(5);Accident Compensation Act 2001 s181;Accident Compensation Act 2001 First Schedule cl7;Accident Compensation Act 2001 First Schedule cl49;ERA s4(1A)(c);Holidays Act 2003 s19(2);Holidays Act 2003 s23;Holidays Act 2003 s27(1)(b);Holidays Act 2003 s29;Holidays Act 2003 s32(3) |
| Cases Cited | Chief Executive of the Department of Inland Revenue v Buchanan [2005] ERNZ 767;Jinkinson v Oceana Gold (NZ) Ltd (2011) 9 NZELC 93,655;New Zealand Meat Workers Union Inc v Alliance Group Ltd [2006] ERNZ 664;New Zealand Tramways etc IUOW v Christchurch Transport Board [1969] BA 1182;Woods v NJ Ellingham & Co Ltd [1977] 1 NZLR 218 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Christchurch_131.pdf [pdf 121 KB] |