| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 79 |
| Hearing date | 20 May 2011 |
| Determination date | 08 June 2011 |
| Member | P Cheyne |
| Representation | J Mirkin ; S Guest |
| Location | Dunedin |
| Parties | Barron v Mackenzie Group Ltd |
| Summary | ARREARS OF HOLIDAY PAY – Applicant claimed did not take any holidays during entire length of employment – Applicant was founder of respondent as well as shareholder, managing director, chairman of board of directors and chief executive officer (“CEO”) – Applicant resigned as director and CEO of respondent due to respondent’s need to restructure – Applicant sought holiday pay for entire period of employment - Respondent claimed applicant either did or must have taken holidays, that was responsible for management of holidays and reporting respondent’s financial position and never alerted other directors to untaken leave - Authority found applicant involved in other business ventures and on District Health Board during employment with respondent – Authority found applicant was employee of respondent – Found no written employment agreement between parties in respect of applicant’s employment as CEO – Applicant did not have fixed days or hours of work – Applicant paid monthly salary payment less PAYE - Applicant principally worked from home - Evidence from applicant’s ex wife that believed was on holiday with husband when travelled to various places nationally and internationally - Found none of respondent’s financial reports recorded respondent’s liability to applicant for untaken holidays – Found applicant’s failure to record accrual of holidays as part of financial reporting mislead respondent’s other board members into thinking applicant taking annual – Found while board could have kept own records reasonably relied on applicant to ensure meeting reporting obligations – Found applicant had complete autonomy over when was working and when not including overseas travel or attendance to own business or other professional interests – Found applicant to be regarded as having taken all annual leave to which became entitled during employment up to specified date – Found applicant’s employment ended before completion of 12 month period since last became entitled to holidays - Found no evidence applicant took holidays in advance during that period – Found applicant entitled to 8 percent of gross earnings for that period – Respondent to pay applicant $5,965 arrears of holiday pay – Interest awarded - Chief Executive Officer |
| Result | Application partially granted ; Holiday pay ($5,965.36) ; Interest (8.4%) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s4(4);ERA s5;ERA s6;ERA s143;ERA s157;ERA s157(3);ERA Part 10;Holidays Act 2003 s16;Holidays Act 2003 s18;Holidays Act 2003 s19;Holidays Act 2003 s24;Holidays Act 2003 s25;Holidays Act 2003 s73;Holidays Act 2003 s81;Holidays Act 2003 s83 |
| Cases Cited | Bell v Broadley Downs Ltd (1987) ERNZ Sel Cas 172 ; (1987) 1 NZELC 95,556 ; [1987] NZILR 959;Wilson v ABC Developmental Learning Centres (NZ) Ltd [2010] NZEMPC 159 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Christchurch_79.pdf [pdf 31 KB] |