| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 59 |
| Hearing date | 28 Apr 2011 |
| Determination date | 03 May 2011 |
| Member | J Crichton |
| Representation | T Oldfield ; P McRae |
| Location | Nelson |
| Parties | Jackson v Sealord Group Ltd |
| Summary | DISPUTE - Interpretation of collective employment agreement (CEA") - Applicant sought orders which would require respondent to count previous service in determining entitlement to long service leave and service allowances together with appropriate arrears - Respondent resisted applicant's claim on basis nothing in terms and conditions of employment to entitle previous service with respondent being taken into account - Respondent claimed applicant's claim out of time - Authority found proceedings not out of time - Found proceedings in nature of dispute not personal grievance - Respondent claimed applicant also outside six year timeframe for non-personal grievance claims - Found cause of action did not arise at date applicant resigned first period of employment - Found at that date applicant would not have known until commencement of second period of employment that respondent was not going to take account of earlier period of service - Applicant claimed no straightforward clause in CEA directly on point but by reason of proven earlier service, applicant entitled to have earlier period of service taken into account in respect of calculation of service allowance and long service leave - Respondent claimed no provision in CEA because no intention for consequence - Found clause added to CEA, which if operative at time applicant re-employed, applicant would have benefited in precisely way applicant sought to have Authority provide for - Applicant claimed service different from continuous service and if parties intended service allowances and long service leave to be based only on continuous service, it would have said so - Applicant claimed amending provision inserted to avoid doubt and to clarify inconsistent practice - Respondent claimed CEA amended to provide new benefit - Respondent claimed may have exercised discretion in particular circumstances, but this was exercise of management prerogative - Respondent claimed no basis for distinction between service and continuous service - Respondent claimed no legal basis on which applicant entitled to payments sought - Found no guidance about previous service and how entitlement triggered - Found difficult to distinguish service from continuous service - Found did less violence to plain words in CEA to imply additional words after appointment as claimed by respondent - Found CEA referred to service after appointment - Respondent claimed CEA contained specific provision relating to temporary workers retaining service entitlements provided rejoined respondent within six months - Found temporary workers got benefit at relevant time not available to permanent staff - Found applicant's claim less plausible interpretation than respondent - Authority declined to make orders sought by applicant" |
| Result | Questions answered in favour of respondent ; Costs reserved |
| Main Category | Dispute |
| Statutes | ERA s129;ERA s142 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Christchurch_59.pdf [pdf 30 KB] |