| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2013] NZERA Wellington 68 |
| Determination date | 31 May 2013 |
| Member | T MacKinnon |
| Representation | L Bell, R Bell ; G La Hood |
| Parties | Bell v Ministry of Business, Innovation and Employment (formerly the Department of Labour) |
| Summary | PARENTAL LEAVE – Applicant sought review of respondent’s decision applicant not eligible for paid parental leave (“PPL”) – Applicant’s partner biological father of child born of surrogate mother – Authority found applicant did not provide required statutory declaration that applicant had assumed care of child with view to adoption – Found applicant’s failure one of process rather than substance – Found applicant assumed care of child with view to adoption, acted in good faith and failure to comply with notice requirements reasonable in all circumstances – Applicant entitled to PPL |
| Abstract | Applicant sought review of respondent’s decision applicant not eligible for paid parental leave (“PPL”). Applicant’s partner (“B”) biological father of child born of surrogate mother. Applicant intended to adopt child with B. Applicant required to give employer notice of intention to take PPL within 14 days of making statutory declaration to effect applicant had assumed care of child with view to adoption of child. Applicant provided employer with application for PPL but did not provide separate written notice of applicant’s intention to take PPL. Applicant and B assumed care of child shortly after birth but commencement of formal adoption process delayed. Applicant claimed delay due to complications around birth causing lengthy hospital stay for surrogate mother. Adoption order subsequently granted to applicant and B. Respondent claimed notice requirements in s33 Parental Leave and Employment Protection Act 1987 (“PLEPA”) strict and matters of substance.;AUTHORITY FOUND –;PARENTAL LEAVE: Likely child otherwise lawfully in applicant’s home under section 33(c) PLEPA as applicant child’s step-parent until adoption. Applicant did not provide required statutory declaration applicant had assumed care of child with view to adoption of child and gave notice to employer by applying for PPL six weeks before assumed care of child. Applicant’s failure one of process rather than substance and occurred because of unusual situation of child’s birth. Applicant not disentitled to PPL because believed documentation required under s33 PLEPA not necessary as B child’s biological father. Provisions of PLEPA did not bar adoptive parent from PPL where child born of surrogate mother. Applicant assumed care of child with view to adoption, acted in good faith and failure to comply with notice requirements reasonable in all circumstances. Applicant entitled to PPL. |
| Result | Application granted ; No order for costs |
| Main Category | Parental Leave |
| Statutes | Adoption Act 1955 s6;Adoption Act 1955 s6(4);Adoption Act 1955 s6(4)(c);Parental Leave and Employment Protection Act 1987;Parental Leave and Employment Protection Act 1987 s8;Parental Leave and Employment Protection Act 1987 s33;Parental Leave and Employment Protection Act 1987 s33(a);Parental Leave and Employment Protection Act 1987 s33(b);Parental Leave and Employment Protection Act 1987 s33(c);Parental Leave and Employment Protection Act 1987 s68(4);Parental Leave and Employment Protection Act 1987 Part 7A;Parental Leave and Employment Protection Act 1987 s71CA;Parental Leave and Employment Protection Act 1987 s71D |
| Number of Pages | 7 |
| PDF File Link: | 2013_NZERA_Wellington_68.pdf [pdf 176 KB] |