| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 159 |
| Hearing date | 7 Jul 2011 |
| Determination date | 14 October 2011 |
| Member | H Doyle |
| Representation | D K Hixon (in person) ; J Dempsey |
| Location | Blenheim |
| Parties | Hixon (Labour Inspector) v Ashwood Park Rest Home 2004 Ltd |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY – Applicant claimed respondent made unlawful deductions from final pay of two employees – Respondent facility manager (“D”) claimed deductions lawful as employment agreement provided for forfeiture of two weeks pay where employment terminated without requisite notice – D accepted owed first employee (“G”) holiday pay – G resigned as had difficulty undertaking role with medical condition – G advised respondent would not work out notice period as not well enough and produced medical certificate in support – Authority found forfeiture clause did not require two weeks notice to be worked out but to be given – Found respondent not entitled to deduct wages from G’s final pay – G entitled to $832 arrears of wages – G entitled to $105 arrears of holiday pay – Second employee (“B”) and D disputed when B resigned – D claimed B did not resign until delivered medical certificate to respondent receptionist – B claimed resigned earlier and had verbally advised D of resignation and given written copy of resignation to D – Found B’s communications with Department of Labour call centre and applicant consistent with B’s evidence – Found more likely B resigned on date claimed by B – B did not work out large part of notice period and supplied medical certificate in support – B claimed intended to return to work to finish remainder of notice period in accordance with medical certificate – B claimed told by respondent assistant manager that had been replaced and no longer on roster – D claimed B failed to return walkie talkie radio – Found no indication from B that B intended other than to work out last few days of notice period – Found little evidence of any actual loss that could justify respondent’s deduction for last few days of B’s notice period – Found intention of forfeiture clause to secure performance with respect to notice period by imposition of penalty rather than genuine pre-estimation of damages – Found forfeiture clause penalty provision and unenforceable – Found insufficient evidence to show B did not return walkie talkie radio – B entitled to $466 arrears of wages – PENALTY – Found penalty not warranted as respondent held misguided but nevertheless genuine view that notice was required to be worked out and element of complexity in forfeiture clauses – Cleaner and Caregiver |
| Result | Application granted (arrears of wages and holiday pay) ; Arrears of wages ($832)(first employee) ($466.60)(second employee) ; Arrears of holiday pay ($105.15)(first employee) ; Interest (5%)(first employee) (5%)(second employee) ; Application dismissed (penalty) ; Costs reserved ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Arrears |
| Statutes | ERA Second Schedule cl11;Judicature Act 1908 s87(3);Wages Protection Act 1983 s13 |
| Cases Cited | Robertson Turnbull Ltd t/a Queenstown Night 'N Day Foodstore v Labour Inspector unreported, P Cheyne, 8 May 2008, CA 61/08 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Christchurch_159.pdf [pdf 45 KB] |