| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 83 |
| Hearing date | 1 Apr 2014 |
| Determination date | 09 June 2014 |
| Member | D Appleton |
| Representation | R Tretheway ; J Pullar, D Beck |
| Location | Christchurch |
| Parties | Donald v Pollard Contracting Ltd |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay - Injury - Claim for work-related gradual onset injury declined by ACC - Days paid as first week's ACC compensation subsequently converted to sick leave - Applicant not paid sick pay when respondent suspected applicant of using sick leave to shift house - Use of annual leave to cover period of sick leave - Cancellation of pre-arranged holiday after disciplinary meeting - Whether applicant suspended - Deduction from final pay - Failure to return keys - Whether respondent required to change locking system - Whether applicant entitled to payment for use of home as work base and storage area, and for use of applicant's tools |
| Abstract | AUTHORITY FOUND -;ARREARS OF WAGES AND HOLIDAY PAY: Respondent breached duty of good faith by not forewarning applicant that intended to deduct three days' sick leave following ACC's decision during period when applicant could have sought review of decision and not advising applicant of deduction until nine months after decision. However, not appropriate to interfere with respondent's approach given applicant paid sick leave and ACC designated period as non-work related injury. No adverse finding made against applicant regarding misuse of sick leave and applicant had sufficient sick leave to be paid for single day but had subsequently been paid full sick leave entitlement. Applicant paid special leave for two days prior to disciplinary meeting and no evidence that annual leave deducted from applicant. Applicant had not accrued additional five days' sick leave to cover three further days applicant sick but applicant had more sick leave remaining to cover part of days than respondent calculated. However, applicant subsequently paid full entitlement to sick leave. Applicant believed suspended following disciplinary meeting and stated did not want to use annual leave. Respondent not entitled to require applicant to treat days as annual leave and applicant entitled to repayment of three days annual leave. Respondent conceded days of paid suspension and special leave not discretionary days for purposes of Holidays Act 2003 and matter resolved already. Applicant guaranteed 40 hours of pay each week and entitled to be paid for one day when no work to be done because of torrential rain. Deduction from applicant's final pay unlawful as no consent to deduction and deduction clause in unsigned employment agreement referred to debt arising from failure to return company property rather than consequential losses. Applicant entitled to repayment of $813 deducted from final wages. No evidence of arrangement for payment for use of applicant's home and tools. Respondent to pay applicant arrears of wages, quantum to be determined, and arrears of holiday pay, quantum to be determined. |
| Result | Application granted ; Arrears of wages (quantum to be determined) ; Arrears of holiday pay (quantum to be determined) ; Costs reserved |
| Main Category | Arrears |
| Statutes | Holidays Act 2003;Holidays Act 2003 s5;Holidays Act 2003 s14;Holidays Act 2003 s18(3);Holidays Act 2003 s19;Holidays Act 2003 s63;Holidays Act 2003 s65;Wages Protection Act 1983 s5 |
| Cases Cited | Donald v Pollard Contracting Ltd [2014] NZERA Christchurch 1 |
| Number of Pages | 12 |
| PDF File Link: | 2014_NZERA_Christchurch_83.pdf [pdf 242 KB] |