| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 229 |
| Hearing date | 26 Jun 2012 |
| Determination date | 05 July 2012 |
| Member | A Fitzgibbon |
| Representation | S Carr; S Roberston-Welsh |
| Parties | Tasneen Begum (Labour Inspector) v Effective Fencing NZ Ltd and Ors |
| Other Parties | Effective Fencing Ltd, O'Connor |
| Summary | ARREARS OF HOLIDAY PAY – Applicant labour inspector sought arrears of holiday pay on behalf of employee (“S”) – Authority found S entitled to arrears of holiday pay claimed – Found respondents not entitled to make deductions from arrears of holiday pay for S’s theft of respondents’ materials – First respondent to pay applicant $957 arrears of annual holiday pay – Third respondent to pay applicant $532 arrears of annual holiday pay and $654 arrears of public holiday pay – PENALTY – Applicant sought penalty for respondents’ failure to pay holiday pay – Found application for penalty out of time – No penalty – COSTS – Less than one day investigation meeting – Applicant sought contribution towards costs – First and third respondents to pay applicant $1,750 contribution towards costs – Delivery driver |
| Abstract | Applicant sought arrears of holiday pay on behalf of employee (“S”). Applicant sought penalty for respondents’ failure to pay holiday pay. S employed by first respondent under 2005 employment agreement. S’s employment transferred to second respondent and S provided with new employment agreement (“2008 employment agreement”) that S did not sign. First respondent accepted owed S arrears of holiday pay. Third respondent accepted owed S arrears of holiday pay but claimed S entitled to one day less than claimed because S took annual leave on one day (“disputed day”). Respondents claimed owed substantial sum by S for S’s theft of respondents’ materials and entitled to deduct amount owed by S from arrears of holiday pay. Applicant sought contribution towards costs.;AUTHORITY FOUND –;ARREARS OF HOLIDAY PAY: S bound by 2008 employment agreement. No evidence S not at work on disputed day. S’s failure to sign 2008 employment agreement meant no express written consent for respondents to deduct monies owing from arrears of holiday pay. First respondent to pay applicant $957 arrears of annual holiday pay. Third respondent to pay applicant $532 arrears of annual holiday pay and $654 arrears of public holiday pay.;PENALTY: Application for penalty out of time. No penalty.;COSTS: Less than one day investigation meeting. First and third respondents to pay applicant $1,750 contribution towards costs. |
| Result | Application granted (arrears of holiday pay); Arrears of holiday pay ($957.17)(annual holiday pay — first respondent)($532.63)(annual holiday pay — third respondent)($654.70)(public holiday pay — third respondent); Application dismissed (penalty); Costs in favour of applicant ($1,750); Disbursements in favour of applicant ($70)(filing fee) |
| Main Category | Arrears |
| Statutes | ERA s134;ERA s135(2)(a);ERA s135(2)(b);ERA s135(5);ERA s234;Holidays Act 2003;Holidays Act 2003 s27(1)(b);Holidays Act 2003 s55;Wages Protection Act 1983;Wages Protection Act 1983 s4;Wages Protection Act 1983 s5;Wages Protection Act 1983 s5(2) |
| Cases Cited | Begum (Labour Inspector) v Effective Fencing NZ Ltd unreported, A Dumbleton, 3 March 2010, AA94/10;Begum (Labour Inspector) v Effective Fencing NZ Ltd [2011] NZERA Auckland 61;Begum (Labour Inspector) v Effective Fencing NZ Ltd [2011] NZERA Auckland 163 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Auckland_229.pdf [pdf 234 KB] |