| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 239 |
| Hearing date | 30 Oct 2012 |
| Determination date | 01 November 2012 |
| Member | D Appleton |
| Representation | Tuckett (in person) ; S Kavanagh |
| Location | Kaikoura |
| Parties | Tucket and Parr v Strawberry Tree Ltd |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY – Applicants sought arrears of wages and holiday pay - Authority found respondent dismissed applicants and could not rely on clause could retain outstanding wages if applicants abandoned employment - Found respondent not entitled to withhold arrears of wages – Found respondent not entitled to withhold arrears of holiday pay as reimbursement for alleged loss of lawnmower - Found respondent suffered inconvenience after applicants’ employment ended but applicants not responsible for any loss incurred by respondent after applicants left – Found respondent had not paid first applicant for alternative holidays first applicant entitled to - Respondent to pay first applicant $620 arrears of wages and $3,934 arrears of holiday pay - Respondent to pay second applicant $640 arrears of wages and $1,147 arrears of holiday pay – COUNTERCLAIM - PENALTY - Respondent sought penalties for applicants’ breach of employment agreement - Applicants had not breached parties’ employment agreements - No penalty - Duty Managers |
| Abstract | Applicant employed as duty managers. Applicants sought arrears of wages and holiday pay. Respondent claimed first applicant (“T”) had already been paid part of arrears of holiday pay and entitled to withhold remainder of arrears as applicants failed to return respondent’s lawnmower and abandoned employment. Applicants claimed lawnmower did not work and left it at respondent’s property. Respondent sought penalties for applicants’ breach of employment agreement (“EA”). Applicants claimed no roster finalised for following week’s work and told by respondent that staff should sort out roster themselves as respondent too busy. Applicants claimed staff agreed on roster and applicants to have one day off. Respondent claimed roster already arranged for week and second applicant (“P”) rostered on for day P claimed had day off. Respondent director’s (“K”) partner sent T text message that T opening workplace on day T believed not working. T claimed replied was not working on day in question and that another employee would be opening workplace that day. P claimed told by respondent if neither P nor T at workplace on day applicants believed had off applicants would be dismissed. Applicants could not be at workplace on day as had made alternative arrangements. Applicants believed had been dismissed and did not make further contact with K.;AUTHORITY FOUND –;ARREARS OF WAGES AND HOLIDAY PAY: Misunderstanding arose between parties. Authority preferred P’s evidence told by K if did not appear at workplace on day in question applicants would be dismissed. Applicants genuinely believed had been dismissed. Respondent dismissed applicants and could not rely on clause could retain outstanding wages if applicants abandoned employment. Alternatively even if applicants had abandoned employment, respondent did not make reasonable inquiries and could not conclude applicants had abandoned employment. Respondent not entitled to withhold arrears of wages. Authority preferred applicants’ evidence relating to lawnmower and, if lawnmower now missing as claimed by respondent, not applicants’ responsibility. Respondent not entitled to withhold arrears of holiday pay as reimbursement for alleged loss of lawnmower. Respondent suffered inconvenience after applicants’ employment ended but applicants not responsible for any loss incurred by respondent after applicants left. In accordance with parties’ EA, applicants should have been consulted before respondent decided to withhold applicants’ holiday pay. Respondent had not paid T for alternative holidays T entitled to. Respondent to pay first applicant $620 arrears of wages and $3,934.75. Respondent to pay second applicant $640 arrears of wages and $1,147 arrears of holiday pay.;COUNTERCLAIM – PENALTY: Applicants had not breached parties’ employment agreements. No penalty. |
| Result | Application granted ; Arrears of wages ($620)(first applicant) ; Arrears of wages ($640)(second applicant) ; Arrears of holiday pay ($3,934.75)(first applicant) ; Arrears of holiday pay ($1,147.70)(second applicant) ; No order for costs |
| Main Category | Arrears |
| Statutes | Holidays Act 2003 s6(3);Holidays Act 2003 s56;Holidays Act 2003 s60 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Christchurch_239.pdf [pdf 243 KB] |