| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 1 |
| Hearing date | 20 Oct 2014 |
| Determination date | 07 January 2015 |
| Member | D Appleton |
| Representation | R Brazil ; J Nicol |
| Location | Dunedin |
| Parties | South Otago High School Board of Trustees v Nicol and anor |
| Other Parties | Nicol |
| Summary | RECOVERY OF MONIES - Applicant sought recovery of salary overpaid to respondents - Novopay - Whether previous settlement agreement (SA") extinguished first respondent's right to 35 days annual leave - Whether first respondent entitled to be paid alarm callout payment weekly or fortnightly - Caretaker and grounds labourer" |
| Abstract | AUTHORITY FOUND -;RECOVERY OF MONIES: Words of SA appeared to deal with only half of 70 days accumulated leave owed to first respondent but purpose of SA to ensure that no uncertainty remained about first respondent's annual leave rights. Compensation payment made to first respondent under SA intended to compensate first respondent for sacrificing right to take remaining 35 days leave. First respondent's right to 35 days annual leave extinguished. Job description stating alarm callout payment to be made weekly presented to first respondent in error. Even if job description signed by first respondent after SA entered into qualified as contract, not clear that first respondent influenced to enter into job description by mistake known to applicant. Contractual Mistakes Act 1977 did not apply. Job description containing reference to weekly alarm callout payment did not reflect meeting of minds between parties as to frequency of payment. Job description prepared before SA and arguably overridden by SA. Parties intended fortnightly alarm callout payment. Caretaker housing allowance paid by Ministry of Education rather than applicant and not to be taken into account in determining first respondent's holiday pay entitlement. Travel allowance payment intended to reimburse first respondent for travel costs related to employment and fell within exception to definition of gross earnings. First respondent had not accrued right to further 25 days annual leave. First respondent overpaid. Amount owed by first respondent to be determined by further investigation meeting. Second respondent paid for annual leave taken and statutory holidays in accordance with contractual and statutory rights. Second respondent not member of applicable union and not entitled to receive pay increases in accordance with successive collective agreements. Second respondent to pay applicant recovery of monies, quantum to be determined. Applicant entitled to seek determination of quantum if parties did not reach agreement. |
| Result | Application granted ; Recovery of monies (quantum to be determined) ; Costs reserved |
| Main Category | Recovery of Monies |
| Statutes | Contractual Mistakes Act 1977;Contractual Mistakes Act 1977 s6;ERA s148;ERA s149;Holidays Act 2003;Holidays Act 2003 s5;Holidays Act 2003 s8;Holidays Act 2003 s8(1);Holidays Act 2003 s14;Holidays Act 2003 s14(c)(ii);Holidays Act 2003 s16;Holidays Act 2003 s21;Holidays Act 2003 s25;Holidays Act 2003 s49;Minimum Wage Act 1983 |
| Cases Cited | Progressive Meats Ltd v Pohio [2012] NZEmpC 103;Tri-Star Customs and Forwarding Ltd v Denning [1999] 1 NZLR 33 |
| Number of Pages | 23 |
| PDF File Link: | 2015_NZERA_Christchurch_1.pdf [pdf 303 KB] |