| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 295 |
| Hearing date | 21-Sep-17 |
| Determination date | 25 September 2017 |
| Member | R Arthur |
| Representation | R Cross (in person) ; N Flint |
| Location | Auckland |
| Parties | Cross v D Bell Distributors Ltd |
| Summary | ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay – PENALTY – Applicant sought penalties for respondent’s failure to provide employment agreement and breach of Holidays Act 2003 – Truck Driver |
| Abstract | AUTHORITY FOUND –;ARREARS OF HOLIDAY PAY: Arrangements for applicant’s employment did not meet the conditions by which holiday pay can be paid on a “pay-as-you-go” basis. Applicant’s work was not intermittent or irregular. Not impractical for respondent to provide applicant annual leave. Inadequate proof of agreement to the “pay-as-you-go” arrangement. Applicant entitled to payment for four weeks annual leave with final pay. Holiday pay paid to applicant in regular pay not an overpayment. Respondent to pay applicant $8,229 arrears of holiday pay. Interest payable.;PENALTY: Outside 12 month timeframe to raise penalty on grounds of failure to provide employment agreement. Respondent deliberately breached Holidays Act by paying applicant’s annual holiday pay with the applicant’s pay. Harm caused to applicant partially addressed by orders for payment of entitlements. Failure to meet statutory obligations severe breach of important social protection. $3,000 penalty appropriate. |
| Result | Applications granted ; Arrears of holiday pay ($8,229.66) ; Interest (5%) ; Penalty ($3,000)(payable to Crown) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s65 ; ERA s65(4) ; ERA s133A ; ERA s135(5) ; ERA s174A ; ERA s174E ; Holidays Act 2003 s3(a) ; Holidays Act 2003 s6(3) ; Holidays Act 2003 s16 ; Holidays Act 2003 s24 ; Holidays Act 2003 s25 Holidays Act 2003 s28 ; Holidays Act 2003 s28(1) ; Holidays Act 2003 s28(1)(a)(ii) ; Holidays Act 2003 s28(4) ; Holidays Act 2003 s75 ; Judicature (Prescribed Rate of Interest) Order 2011 cl4 |
| Cases Cited | David O’Neil Contracting Ltd v Labour Inspector (Jon Hearing) ERA Christchurch CA41/08, 15 April 2008;Harding v V & A Keefe Ltd ERA Christchurch CA48A/08, 10 October 2008;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC) |
| Number of Pages | 12 |
| PDF File Link: | 2017_NZERA_Auckland_295.pdf [pdf 340 KB] |