| Summary |
DISPUTE – Applicant paid respondent retainer but most of respondent’s income derived from commission – Applicant sought calculation of respondent’s annual leave and public holiday pay for seven year period covering Holidays Act 1981 (“HA 1981”) and Holidays Act 2003 (“HA 2003”) – Respondent also sought sick leave, holiday balances and interest – For annual leave, applicant paid respondent retainer component plus commission component, with commission component calculated as whichever was greater of either average of commission pay over past 12 months, or commission processed during respondent’s period of annual leave – Respondent argued annual leave should include retainer, weekly commission payment based on previous year’s average, and commission on orders processed while respondent away – For public holidays, applicant included commission payments in relevant daily pay calculation under HA 2003 but argued not required by HA 1981 – First issue whether respondent entitled to commission on orders made while respondent on annual leave, in addition to holiday pay – Employment agreement (“EA”) provided respondent entitled to receive commission on all net sales gained by his sales territory for term of agreement – Respondent argued EA entitled respondent to receive commission in addition to annual holiday pay – Applicant argued purpose of HA 2003 to promote work/life balance without financial suffering – Applicant argued purpose not to enable employees to receive more than otherwise would have, had they actually worked – Authority accepted applicant’s argument – Found employees on annual leave to be paid holiday pay instead of, not as well as, normal contractual entitlements – Found applicant’s approach to holiday pay consistent with statutory obligations – Found in calculating arrears of holiday pay, applicant entitled to deduct payment already made for retainer and commission for annual leave period – Second issue whether applicant required to include commission payments in calculation of public holiday pay under HA 1981 – Authority found purpose of s7A HA 1981 to give workers day off without losing pay – Found no evidence applicant lost pay as result of taking public holidays – Found followed applicant had public holidays “on pay” and issue of whether composite rate applied did not arise – Authority found when considered over a month rather than a day, commission payments already included in calculation of public holiday pay under HA 1981 – Authority noted conclusion specific to facts – Third issue whether applicant required to include commission payments in sick and bereavement leave – Respondent received retainer and commission when on sick leave – Respondent claimed should receive amount same payment as for public holidays – Authority accepted respondent’s argument insofar as respondent should not lose pay for taking special leave – However, no evidence that pay in months when respondent took special leave was less than ordinarily received – PRACTICE AND PROCEDURE – Six year limitation period – Authority found applicant not consented to extension of time – Also found s219 ERA powers did not override specific time period as in s142 ERA – Authority not to make award regarding respondent’s entitlements prior to 2001, as statement of problem lodged in 2007 - UNJUSTIFIED DISADVANTAGE – Respondent claimed applicant’s alleged failure to pay contractual and statutory entitlements, and excessive delays in dispute resolution, gave rise to disadvantage grievance – Applicant claimed grievance not raised within 90 days - Authority found grievance and holiday pay issues so closely related that further statement of problem not required – Authority found disadvantage grievance to be heard separately – Sales consultant |