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BVR Operations Ltd t/a Brinkley Village v Baker (Labour Inspector)
20 Oct 2006, H Doyle, CA 149/06, (9 pages)
ARREARS OF HOLIDAY PAY - Objection to demand notice issued by respondent Labour Inspector - Demand notice required payment of annual and public holiday pay to former employee ("S") - Applicant disputed notice on grounds S's employment intermittent and irregular, annual holiday pay included in hourly rate, and S knew and agreed to payment in that manner - Also objected on ground respondent incorrectly determined six public holidays otherwise working days - No written employment agreement - Payment in such manner only permitted in two circumstances in s28 Holidays Act 2003 - Not fixed term employment - Authority considered pattern of work to determine whether intermittent or irregular - Hours varied - Schedule indicated features of regularity and predictability of work patterns - Three weeks annual leave practicable - Although finding resolved issue, Authority considered s28 requirements - Authority not satisfied on balance of probabilities S agreed holiday pay included in hourly rate - No evidence in wage and time records and no payslips showing holiday pay as identifiable component - No deduction under s23(2) given applicant not entitled to pay holiday pay in advance - Annual holiday pay due and owing - Reasonable expectation S would have worked when restaurant open - Each public holiday fell on or transferred to otherwise working day - Fact restaurant closed for Christmas and Easter periods not relevant - Given variance in hours, and no other rate specified in any employment agreement, formula in s9(3) appropriate method of calculation of relevant daily pay - Authority agreed with respondents calculations - Public holiday pay due and owing - COMPLIANCE ORDER - Objection not upheld - Compliance with demand notice ordered
Result: Application dismissed (Objection to demand notice) ; Arrears of holiday pay ($297.45)(Annual holiday pay), ($319.62)(Public holiday pay) ; Orders accordingly ; Costs reserved
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