| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 25/09 |
| Hearing date | 21 Jan 2009 |
| Determination date | 29 January 2009 |
| Member | D King |
| Representation | J Hopkins ; C Park |
| Location | Auckland |
| Parties | Reid (Labour Inspector) v Barmuda Ltd |
| Summary | ARREARS OF HOLIDAY PAY – Applicant alleged respondent failed to pay former employee (“M”) holiday pay during thirteen months of employment – Employment ceased five years prior – Applicant sought records for period in question - M’s individual employment agreement lost in flood – Respondent’s hard drive failed and information stored on computer lost – Authority accepted respondent supplied all documents that was able to access and that no fault of respondent’s in losing other documents – M received holiday pay on “pay as you go” basis – Authority found M initially employed on casual basis, then moved to full time fixed term position – Authority preferred respondent’s evidence that M signed employment agreement (“EA”) upon starting fixed term position – Found EA provided holiday pay to be paid in wages – Holidays Act 1981 (“HA 1981”) repealed by Holidays Act 2003 (“HA 2003) during M’s employment – Under HA 1981, during M’s casual employment and part of full time fixed term employment, pay as you go basis for holiday pay complied with legislation – When HA 2003 came into force, M employed for further two weeks before fixed term employment expired – Authority found s28(1)(c) HA 2003 not satisfied, because holiday pay element identified on respondent’s payroll but not on M’s payslips – Authority did not accept respondent’s argument that unreasonable to adjust payroll system to accord with new legislation – As not all statutory criteria met, M entitled to holiday pay at 6% for two week period between when HA 2003 came into force and when fixed term employment expired – Interest owing from date employment ceased to when payment made in full – Duty manager |
| Result | Application granted ; Holiday pay (quantum to be determined) ; Interest (5.7%) ; Costs reserved |
| Main Category | Arrears |
| Statutes | Holidays Act 1981;Holidays Act 2003 s28(1)(a);Holidays Act 2003 s28(1)(b);Holidays Act 2003 s28(1)(c);Holidays Act 2003 s28(1)(d) |
| Cases Cited | Drake Personnel (NZ) Ltd v Taylor [1996] 1 ERNZ 324;Gladstone Milk Bar Ltd v Henning [1998] 1 ERNZ 296 ; [1998] 3 NZLR 183 |
| Number of Pages | 6 |
| PDF File Link: | aa 25_09.pdf [pdf 31 KB] |