| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 172 |
| Determination date | 28 April 2011 |
| Member | R A Monaghan |
| Representation | S Kemp ; G La Hood |
| Location | Auckland |
| Parties | Metcalfe v Chief Executive of the Department of Labour |
| Summary | PARENTAL LEAVE – Applicant sought review of respondent’s decision ineligible for paid parental leave (“PPL”) – Applicant self employed and applied for PPL after assumption of care of child with view to adoption – Applicant claimed grounds given for refusal to grant PPL unfair to self employed adoptive parents and inability to obtain PPL discriminatory towards adoptive parents – Applicant received nine days notice of adoption – Applicant unaware self employed person entitled to PPL so delay before pursued entitlement – Applicant continued to work part time during period of delay – Applicant unpaid for hours worked during period of leave on advice work undertook could amount to return to work and affect PPL – Respondent claimed applicant did not cease work and commence PPL on date assumed care of child – Respondent claimed applicant continued working and sought to commence PPL from later date – Respondent claimed applicant ineligible for PPL – Respondent claimed applicant obliged to take PPL at point when applicant became entitled to it – Applicant claimed focus on whether temporary cessation of work occurred because of assumption of care of child and when cessation began – Applicant claimed approach did not accept only possible date of commencement could be date of assumption of care of child – Applicant claimed provided there was causal link between temporary cessation of work and assumption of care of child, cessation of work capable of amounting to parental leave – Authority found date on which applicant assumed care of child must be date on which entitlement to payment commenced – Found applicant had not ceased work on commencement date and therefore not “eligible self employed person” – Found no entitlement to PPL – Found applicant’s subsequent level of activity did not amount to return to work – Found activity amounted to no more than oversight or occasional administrative tasks – Found no irregularities to address |
| Result | Application dismissed ; Costs reserved |
| Main Category | Parental Leave |
| Statutes | Parental Leave and Employment Protection Act 1987 s2;Parental Leave and Employment Protection Act 1987 s68;Parental Leave and Employment Protection Act 1987 s68(2);Parental Leave and Employment Protection Act 1987 s71CB;Parental Leave and Employment Protection Act 1987 s71CB(1)(b);Parental Leave and Employment Protection Act 1987 s71CB(1)(b)(iii);Parental Leave and Employment Protection Act 1987 s71CD;Parental Leave and Employment Protection Act 1987 s71DA;Parental Leave and Employment Protection Act 1987 s71K;Parental Leave and Employment Protection Act 1987 s71K(2);Parental Leave and Employment Protection Act 1987 s71K(2)(a);Parental Leave and Employment Protection Act 1987 s71K(2)(b);Parental Leave and Employment Protection Act 1987 s71LA;Parental Leave and Employment Protection Act 1987 s71LA(1)(a);Parental Leave and Employment Protection Act 1987 s71LA(1)(b);Parental Leave and Employment Protection Act 1987 s71ZB |
| Cases Cited | N v Department of Labour unreported, L Robinson, 23 Oct 2008, AA 358/08 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_172.pdf [pdf 29 KB] |