Employers with workers who live on site are being advised to take note of a recent Employment Relations Authority decision involving a former camping ground manager.
The Employment Relations Authority (ERA) found that Nelson man Keith Hill was unjustifiably dismissed from the Riverview Holiday Park and Cafe in Murchison by his employer, Peter Shand and that he had been underpaid for two years.
Hill was employed at Riverview as the Manager for two years until February 2013 when he was dismissed over allegations of dishonesty.
His annual salary had been verbally agreed at $30,000, but he was often not paid in full because the business didn’t produce sufficient income to pay his wages. Hill argued that even if he had been paid in full the long hours he often worked meant he would have received less than the minimum wage.
The ERA agreed with the judgement stating Hill “worked long days in the peak season” and that he “had constraints on his evenings and nights during the peak season almost every night and had to remain alert, even when asleep, to any work that needed to be done”, and concluded Hill was entitled to be paid at not less than the minimum wage for 15 hours per day during the peak season.
The authority also ruled that Hill had been unjustifiably dismissed and that there was “not one shred of evidence of any substantive justification for dismissing Mr Hill for dishonesty". Shand also failed to adequately investigate the claim or put it to Hill to respond which lead the authority to conclude a "complete lack of procedural fairness renders the decision to dismiss unjustifiable".
Shand was ordered to pay Hill $69,561 in unpaid wages, $15,120 gross in lost wages for the three months after he was dismissed and $7000 in compensation for humiliation and loss of dignity.
Hill’s lawyer, Nick Mason of Pitt & Moore, says the ERA judgement is significant because it is one of first cases in the hospitality sector to clarify the law around living and working on site.
“While the circumstances in this case are relatively unusual, it highlights that employers need to be aware of how the term 'work' is actually interpreted” Mason said. “The really helpful thing for employers is that this decision goes a long way to clarifying the law with respect to “sleepover” cases, which has been unsettled since the Dickson v Idea Services case (involving payments to residential carers for the disabled) was decided by the Employment Court.”
The ERA found while there were restraints on Hill’s freedom during the evenings, he could still socialise and his privacy was not compromised compared to the carers or the recent case Law and Colbert et al v Woodford House and Iona College Board of Trustees which involved boarding school supervisors.
The authority also found that while Hill had “considerable responsibilities” during the nights, the campers were not vulnerable people unlike those in the other cases therefore that argument did not hold.
Mason told the Nelson Mail that the case was also a reminder for employers to carefully consider and administer job requirements, “particularly hours worked and the tasks employees are required to undertake”.