| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 18/07 |
| Hearing date | 17 Nov 2006 |
| Determination date | 25 January 2007 |
| Member | J Wilson |
| Representation | R McCabe ; S Dalzell |
| Location | Auckland |
| Parties | Fleming v Airways Corporation of New Zealand Ltd |
| Summary | DISPUTE - Applicant decided to retire - Intended to finish work but remain employee until expiry of annual leave, days in lieu, retirement leave etc - For previous 35 years applicant had worked 4/2 roster - Respondent calculated leave using 5/2 roster - Change resulted in less leave - Respondent believed calculation appropriate as 4/2 roster devised as health and safety measure - As no prospect of returning to work alleged no basis to maintain 4/2 roster - Collective agreement (CEA") provided little to resolve dispute - Necessary to consider factual matrix - Previous employees retirement leave calculated using 5/2 roster - During employment leave calculated on 4/2 roster - Authority considered State Service Tribunal decision that established 4/2 roster - Neither original Tribunal decision nor CEA suggested employee should be removed from 4/2 roster merely because not returning to operational duty - Applicant not notified of change to roster in accordance with CEA - Entitled to assume continued on 4/2 roster - Remedies - Applicant's leave to be recalculated in accordance with 4/2 roster - Any arrears due following recalculation to be paid as soon as practical, with interest - PENALTY - Respondent genuinely believed interpretation correct - No evidence breach deliberate - Penalty not appropriate - Air Traffic Controller" |
| Result | Question answered in favour of applicant ; Orders accordingly ; Interest (9%) ; Application dismissed (Penalty) ; Costs reserved |
| Main Category | Dispute |
| Statutes | Holidays Act 2003 |
| Cases Cited | Association of Staff in Tertiary Education Inc: ASTE Te Hau Takitini o Aotearoa v;Hampton, Chief Executive of the Bay of Plenty Polytechnic [2002] 1 ERNZ 491 |
| Number of Pages | 6 |
| PDF File Link: | aa 18_07.pdf [pdf 80 KB] |