| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 378 |
| Hearing date | 23 Aug 2011 |
| Determination date | 30 August 2011 |
| Member | R A Monaghan |
| Representation | P Gumbley (in person) ; J Selfe (in person) |
| Location | Auckland |
| Parties | Gumbley v Selfe |
| Summary | ARREARS OF HOLIDAY PAY – Applicant claimed unpaid holiday pay – Parties entered into employment relationship in anticipation of partnership – Applicant claimed did not take any annual leave during period of employment – Respondent did not dispute calculation of holiday pay owing but claimed urged applicant to take leave several times and applicant could have raised and resolved outstanding liability – Respondent claimed partnership took over business as going concern including employee entitlements – Authority found legal relationship between parties as employer and employee terminated and any outstanding obligations crystallised on date of termination – Found employee entitlements did not transfer automatically when employer’s business sold as going concern – Found no agreement to different effect – Found $2,886 arrears of holiday pay due and owing – Interest payable – RECOVERY OF MONIES – During partnership applicant slowly purchased respondent’s share until respondent no longer partner and became employee of applicant – Parties signed written employment agreement – Applicant claimed overpaid respondent holiday pay – Parties disputed date respondent’s employment terminated – Applicant claimed respondent resigned and respondent claimed retired several months later than applicant claimed – Found no resignation letter – Found continuation of discussions regarding respondent’s plans to retire – Found respondent returned to work after period of annual leave but found workload so light respondent retired shortly afterwards – Found respondent’s employment did not terminate by resignation at time claimed by applicant – Found respondent entitled to payment for public holidays received – Found overpayment of entitlements should not be deducted from applicant’s calculation – Found respondent overpaid holiday pay but no provision for recovery of monies overpaid |
| Result | Application granted (arrears of holiday pay) ; Arrears of holiday pay ($2,886) ; Interest (5%) ; Application dismissed (recovery of monies) ; Costs reserved |
| Main Category | Arrears |
| Statutes | Holidays Act 2003 |
| Number of Pages | 5 |
| PDF File Link: | 2011_NZERA_Auckland_378.pdf [pdf 16 KB] |