| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 81 |
| Hearing date | 16 Apr 2013 |
| Determination date | 07 May 2013 |
| Member | H Doyle |
| Representation | P Churchman ; no appearance, G Brown (in person) |
| Location | Christchurch |
| Parties | Cairns v The Trusty Delivery Company Ltd and Anor |
| Other Parties | Graeme Brown |
| Summary | ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay – Applicant employed by first respondent – Applicant’s company entered into franchise agreement with first respondent – Whether agreement to offset holiday pay against franchise fee – PENALTY – Applicant sought penalty for second respondent inciting, instigating or abetting breach of employment agreement – No appearance for first respondent – Sales and marketing manager |
| Abstract | AUTHORITY FOUND –;ARREARS OF HOLIDAY PAY: Second respondent revoked proposal to offset holiday pay against franchise fee. Full amount still owed by applicant under franchise agreement. Summary of annual leave showed holiday pay outstanding. Continued failure to pay holiday pay breach of employment agreement. First respondent to pay applicant $5,230 arrears of holiday pay. Interest payable.;PENALTY: Second respondent active in conducting affairs of first respondent and responsible for ensuring first respondent met obligations. Second respondent aware applicant owed holiday pay. Second respondent aware no agreement for holiday pay to be offset against franchise fees. Second respondent deliberately encouraged and assisted breach of employment agreement. Little prospect of applicant being paid holiday pay by first respondent. $3,000 penalty appropriate. |
| Result | Applications granted ; Arrears of holiday pay ($5,230.76) ; Interest (5%) ; Penalty ($3,000)(payable to applicant) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s134;ERA s134(2);ERA s135(2);ERA Second Schedule cl11(1);Holidays Act 2003;Judicature Act 1908 s87(3) |
| Cases Cited | Credit Consultants Debt Services NZ Limited v Wilson (No 3) [2007] ERNZ 252;Peacock v The NZ Performance etc Workers Union (1990) ERNZ Sel Cas 761;Strachan v Moodie (2012) 10 NZELR 216 |
| Number of Pages | 10 |
| PDF File Link: | 2013_NZERA_Christchurch_81.pdf [pdf 182 KB] |