| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 408 |
| Determination date | 16 November 2012 |
| Member | R Larmer |
| Representation | D Cox (in person) ; A Lubbe |
| Parties | Cox v Auckland Council |
| Summary | ARREARS OF WAGES – Parties disputed whether applicant entitled to additional redundancy compensation (“compensation”) - Applicant employed by district council (PDC") succeeded by respondent - Applicant claimed entitled to two months’ salary in lieu of notice after permanent employment terminated and further redundancy compensation amount as if applicant had worked out full notice period – Applicant accepted fixed term employment with respondent during notice period – Authority found applicant’s acceptance of fixed term role voided notice previously issued by PDC – Found redundancy pay and pay in lieu of notice distinct and only applicant’s entitlement to redundancy compensation deferred until expiry of fixed term – Found applicant not owed any outstanding pay in lieu of notice and applicant’s fixed term engagement prevented applicant from accruing further redundancy compensation during fixed term engagement – Found applicant not entitled to unpaid pay in lieu of notice or additional redundancy compensation - Application dismissed" |
| Abstract | Parties disputed whether applicant entitled to additional redundancy compensation (“compensation”). Matter dealt with on papers. Applicant claimed entitled to two months’ salary in lieu of notice after employment terminated and further redundancy compensation amount as if applicant had worked out full notice period. Applicant employed by district council (“PDC”) succeeded by respondent. Respondent denied applicant entitled to any further payments. Parties’ employment agreement stated applicant’s employment could be terminated on three months’ notice or by payment in lieu of notice. Applicant rejected offer of substantially different role and respondent confirmed applicant entitled to redundancy compensation. Respondent advised applicant if applicant accepted new role at respondent previous notice that applicant would be paid redundancy compensation on termination of employment would no longer apply. Applicant accepted fixed term position ten days before employment terminated and applicant’s entitlement to redundancy compensation deferred until applicant completed fixed term engagement. Applicant claimed redundancy compensation received when extended first term ended incorrect. Applicant claimed based on date received notice of termination respondent incorrectly calculated payment in lieu for balance of notice period. Applicant claimed contractual notice period should have been included when respondent calculated applicant’s redundancy compensation whether or not it was worked out or paid in lieu. Applicant claimed respondent’s reference to “redundancy compensation” being deferred included redundancy compensation and payments in lieu of notice.;AUTHORITY FOUND –;ARREARS OF WAGES: Applicable legislation only provided for deferral of redundancy compensation not deferral of payments in lieu of notice. No commitment that pay in lieu of notice would be made to individual who accepted offer of fixed term employment with respondent. Respondent made it clear that if applicant accepted position with respondent before employment terminated notice previously issued would be void. Applicant’s acceptance of fixed term role voided notice previously issued by PDC. Redundancy pay and pay in lieu of notice conceptually and functionally distinct. Only applicant’s entitlement to redundancy compensation deferred until expiry of fixed term. Applicant not owed any outstanding pay in lieu of notice. Applicant’s fixed term engagement prevented applicant from accruing redundancy compensation during fixed term engagement. Respondent correctly calculated applicant’s redundancy compensation. Applicant not entitled to unpaid pay in lieu of notice or additional redundancy compensation. |
| Result | Application dismissed ; No order for costs |
| Main Category | Arrears |
| Statutes | Local Government (Auckland Council) Act 2009;Local Government (Auckland Transitional Provisions) Act 2010 s106 |
| Cases Cited | Westfield Holdings v Adams (2001) 114 IR 241 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_408.pdf [pdf 169 KB] |