| Summary |
PRACTICE AND PROCEDURE – Applicant lodged objection to respondent Labour Inspector’s demand notice – Demand notice sought payment of annual and statutory holiday pay – Applicant’s first ground of objection that proportion of holiday pay paid on “pay as you go” basis during employment - Authority found s28 Holidays Act 2003 (“HA”) provided four conditions must be satisfied – Firstly, Authority found employee (“G”) not employed on fixed term agreement nor was work so intermittent or irregular that impracticable for G to receive annual holidays – Secondly, Authority preferred G’s evidence that no arrangement for holiday pay to be included with regular wages, even if oral agreement legally permissible – Thirdly, found holiday pay not identifiable component of G’s pay – Fourthly, condition requiring payment at correct rate of holiday pay also not met – Authority found employment outside limited circumstances where regular payment of holiday pay permitted, so G entitled to holiday pay under s28(4) HA – G later signed written employment agreement (“EA”) – Applicant claimed agreement shown by handwritten clause on last page stating hourly rate included 6 percent holiday pay – Respondent produced G’s copy showing no such clause – Authority found even if EA was evidence of agreement for “pay as you go” holiday pay, first condition of s28 HA not met because G permanently employed on regular basis – First ground of objection failed – Second ground of objection that any holiday pay incorrectly paid during employment could be treated as overpayment, and clause in CA permitted deduction of overpayments from wages owed at end of employment – Authority found argument fundamentally at odds with objects and specific provisions of HA, and cannot contract out of HA – Second ground rejected – Applicant ordered to pay Labour Inspector sum set out in demand notice |