| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 64 |
| Hearing date | 26 Mar 2013 |
| Determination date | 05 April 2013 |
| Member | M B Loftus |
| Representation | K Duffy (in person) ; L Tong |
| Location | Christchurch |
| Parties | Duffy v Kindercare Learning Centres Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent’s failure to provide ten minute breaks – Respondent claimed applicant would have seen other employees take breaks and chose not to take ten minute breaks – Authority found law clear employer must provide breaks and be proactive – Found not enough for respondent to do nothing given statutory obligation to provide breaks – Applicant unjustifiably disadvantaged by respondent’s failure to ensure provision of breaks – REMEDIES – No contributory conduct - $750 compensation appropriate – Cook |
| Abstract | Applicant employed by respondent as cook. Applicant claimed unjustifiably disadvantaged by respondent’s failure to provide ten minute breaks. Applicant claimed unaware of right to rest and meal breaks as recent immigrant to New Zealand and such rights not provided in applicant’s country of origin. Applicant informed of half hour unpaid lunch break in letter accompanying employment agreement (“EA”) but EA did not mention rest and meal breaks. Subsequent version of EA provided employee to take rest and unpaid meal breaks at times directed by respondent. Applicant unaware of new version of EA. After applicant resigned became aware of entitlement to two ten minute paid breaks each day. Applicant claimed not instructed by respondent entitled to ten minute breaks and other non-teaching employee failed to take breaks. Respondent claimed all teaching staff had ten minute breaks and no employee told could not have break. Respondent claimed applicant would have seen other employees take breaks and chose not to take ten minute breaks. Respondent accepted did not raise issue or try to persuade applicant to take breaks.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE: Law clear employer must provide breaks and be proactive. Applicant should not have known about breaks but, in any event, not enough for respondent to do nothing given statutory obligation to provide breaks, especially where respondent had taken right to instruct other employees when to take breaks. Applicant unjustifiably disadvantaged by respondent’s failure to ensure provision of breaks. REMEDIES: No contributory conduct. $750 compensation appropriate. |
| Result | Application granted ; Compensation for humiliation etc ($750) ; Disbursements in favour of applicant ($71.56)(filing fee) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA Part 6D |
| Number of Pages | 5 |
| PDF File Link: | 2013_NZERA_Christchurch_64.pdf [pdf 153 KB] |