| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 179 |
| Hearing date | 8 Mar 2013 - 9 Aug 2013 (2 days) |
| Determination date | 28 August 2013 |
| Member | D Appleton |
| Representation | S Boyce ; K Chapman |
| Location | Nelson |
| Parties | Jackson v TSL Nelson Ltd |
| Summary | ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay – Whether parties agreed applicant entitled to accumulate time off in lieu of hours worked over normal working hours – Whether applicant entitled to accumulate time off in lieu on hour-for-hour basis or whether arrangement flexible – No written agreement regarding time off in lieu – Long hours worked – Whether respondent entitled to deduct holiday pay from applicant’s final wages – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent’s failure to allow applicant to take time off in lieu or pay applicant’s holiday pay – GOOD FAITH – Applicant claimed respondent breached good faith duty – Customer service technician |
| Abstract | AUTHORITY FOUND –;ARREARS OF HOLIDAY PAY: Binding agreement reached resulting in applicant being entitled to accrue time off in lieu on hour-for-hour basis. Applicant entitled to infer base working week was 40 hours and applicant entitled to accrue time off in lieu for every hour worked over 40 hours per week. Necessary for purposes of business efficacy to imply term into employment agreement to effect applicant would be given reasonable opportunity to take accumulated time off or, to extent not reasonably possible to take time off, value of accumulated time off in lieu be paid out at end of applicant’s employment. Applicant entitled to be paid out in respect of $19,976 time off in lieu accrued but not able or allowed to be taken. Respondent treated some days taken as time off in lieu as annual leave and wrongly deducted amount from applicant’s annual leave entitlement. Respondent to pay applicant arrears of holiday pay, quantum to be determined.;UNJUSTIFIED DISADVANTAGE: Applicant’s complaint derived from disagreement with respondent as to extent of applicant’s rights to accrue and take time off in lieu. Respondent did not act in bad faith or unjustifiably in relation to applicant’s rights under Holidays Act 2003. Applicant’s complaint arose from interpretation, application or operation of parties’ employment agreement. No unjustified disadvantage.;GOOD FAITH: Respondent did not deliberately renege on agreement with applicant. No breach of good faith. |
| Result | Application granted (arrears of holiday pay) ; Arrears of holiday pay (quantum to be determined) ; Applications dismissed (unjustified disadvantage)(good faith) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s4(1);ERA s103(1)(b);ERA s103(3);ERA s131;ERA s137;Holidays Act 2003;Holidays Act 2003 s24;Holidays Act 2003 s25;Holidays Act 2003 s26;Wages Protection Act 1983 |
| Cases Cited | Air NZ Ltd v Airline Stewards & Hostesses IUOW [1987] NZILR 605 |
| Number of Pages | 20 |
| PDF File Link: | 2013_NZERA_Christchurch_179.pdf [pdf 230 KB] |