| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 174/08 |
| Hearing date | 9 May 2008 |
| Determination date | 12 May 2008 |
| Member | R Arthur |
| Representation | K Van Walen ; A Leulu |
| Location | Auckland |
| Parties | Van Walen v Department of Labour |
| Summary | PARENTAL LEAVE - Application for review under s71ZB Parental Leave and Employment Protection Act 1987 (“PLEPA”) - Application for paid parental leave (“PPL”) approved - Applicant made redundant three weeks before due to go on PPL when employer put into voluntary liquidation - Applicant contacted IRD about redundancy and matter referred to Department of Labour (“DoL”) - DoL advised no longer eligible to receive PPL as employment terminated before PPL started and therefore no longer had position from which to take PPL - Individual employment agreement entitled applicant to one month’s notice in event of redundancy - Liquidators’ acknowledged applicant had unsecured claim for four weeks notice - Issues were when applicant’s employment ended and whether ineligible for PPL when employment ended - Applicant submitted although in liquidation employer still obliged to give her notice of termination - Submitted therefore still eligible for PPL - PPL should then continue as provided for under s71L(2)(a) PLEPA - Section 71L(2)(a) stated PPL still payable although employee's employment terminated by redundancy before 14 weeks after date of commencement or employee returned to work or resigned - Respondent submitted applicant ceased to be eligible employee under PLEPA as not employed by time PPL started - Submitted applicant also not covered by s71L PLEPA - PLEPA provided for maternity leave to begin earlier than “expected date of delivery” as used in s7 - Appeared applicant’s circumstances no longer met requirements of s7 PLEPA - However, Authority stated s7 PLEPA to be read in context of Act as a whole, and consistently with intention of Act - Under s12 PLEPA applicant and employer agreed applicant’s maternity leave would start earlier - References in s7 to whether employee “will have been in the employment of…” must be read as anticipatory or prospective at time application for PPL made and actually taken - Not intended to apply retrospectively once leave commenced earlier under provisions of ss11 to 14 - Dismissal clearly redundancy - Employer’s decision to go into liquidation did not extinguish applicant’s contractual right to notice or pay in lieu - Date of termination taken from expiry of agreed period of notice or period for which pay in lieu given in determining 90 day period in which to raise personal grievance - Authority saw no reason why principle could not apply to timeframes in statutory provision for parental leave - Cases dealing with obligations on employees not to work for competitor during notice period also supported view - Applicant entitled to benefit of contractual notice period - Applicant’s employment extended for further month after date of termination so overlapped with date due to start PPL - Applicant protected by s71L(2)(a) PLEPA so PPL to continue through to originally scheduled expiry - DoL’s decision to be reversed - Applicant entitled to PPL for period previously advised by IRD - Customer Services Representative |
| Result | Application granted ; Orders accordingly ; No order for costs |
| Main Category | Parental Leave |
| Statutes | Parental Leave and Employment Protection Act 1987 s7;Parental Leave and Employment Protection Act 1987 s11;Parental Leave and Employment Protection Act 1987 s12;Parental Leave and Employment Protection Act 1987 s13;Parental Leave and Employment Protection Act 1987 s14;Parental Leave and Employment Protection Act 1987 s71CA;Parental Leave and Employment Protection Act 1987 s71D;Parental Leave and Employment Protection Act 1987 s71K;Parental Leave and Employment Protection Act 1987 s71K(1);Parental Leave and Employment Protection Act 1987 s71L;Parental Leave and Employment Protection Act 1987 s71L(1);Parental Leave and Employment Protection Act 1987 s71L(2);Parental Leave and Employment Protection Act 1987 s71L(2)(a);Parental Leave and Employment Protection Act 1987 s71ZB |
| Cases Cited | GFW Agri-Products Ltd v Gibson [1995] 2 ERNZ 323;G N Hale & Son Ltd v Wellington Caretakers IUOW (1990) ERNZ Sel Cas 843,848;Green & Ors v Rendezvous Hotels (NZ) Ltd unreported, M Urlich, 6 August 2007, AA 235/07;Hull v Department of Labour unreported, A Dumbleton, 9 March 2006, AA 68/06;Ongley Wilson Real Estate t/a Manawatu First National v Burrows (No 2) [1998] 3 ERNZ 759;Poverty Bay Electric Power Board v Atkinson [1992] 3 ERNZ 413;Schilling v Kidd Garrett Ltd [1977] 1 NZLR 243;Viegas v The Flower House Ltd unreported, Y Oldfield, 27 June 2007, AA 193/07;Waikanae Holdings (Gisborne) Ltd v Smith [2005] 1 ERNZ 267;Wilson & Horton Ltd v Stiffe [2001] 1 ERNZ 296 |
| Number of Pages | 9 |
| PDF File Link: | aa 174_08.pdf [pdf 34 KB] |