ERA awards 10 weeks annual leave but finds worker abandoned employment after five-month absence
The Employment Relations Authority (ERA) found that a worker was not dismissed from a family garage door business despite claiming a text message ended his employment, but awarded him 10 weeks of unpaid annual leave while rejecting claims for public holiday pay and wage deductions.
The worker had been employed in the family business for approximately 27 years and claimed unjustified dismissal, unpaid holiday entitlements, and reimbursement for unauthorised wage deductions.
The employers, a partnership of his parents, denied the claims and counterclaimed for return of allegedly taken property.
Employment background and relationship breakdown
The worker was employed by a partnership formed by his father and mother in 2016, which traded in the installation and repair of garage doors.
The worker had worked in the business for approximately 27 years before the partnership was formed, with his last day at work being 15 May 2023, when he suffered an injury and made an ACC claim.
The employers claimed they first heard the worker was on ACC in late June 2023 and that he was absent without explanation for five months while the father made numerous unsuccessful contact attempts. The business has since been sold to a third party.
The ERA granted non-publication orders for names and identifying details of all parties and witnesses, finding that the proceedings had impacted family members considerably, with real risk that publication would lead to increased distress beyond what might typically be expected in employment disputes.
Text message and dismissal claim assessment
The worker claimed he was dismissed by text message from his father received in October 2023.
The undated message stated the father was "sick and tired" of threats and disrespect, noted there were seven doors to install, and suggested the worker appeared not to want to be employed anymore, with the father seriously thinking of winding up.
The father did not deny sending the text but said it was sent after numerous unsuccessful attempts to contact the worker.
The ERA concluded the text message did not evidence dismissal at the employer's initiative, finding it had a clear appearance of seeking to elicit a response and prompt return to work rather than constituting an unequivocal termination.
The worker did not respond to the text message at the time. The ERA found the worker conducted himself in a manner consistent with the employment relationship having ended from that point, but determined this did not amount to dismissal as alleged.
The Authority found the worker had not discharged his onus of proving dismissal at the employer's initiative.
Holiday pay entitlement and record-keeping failures
The worker claimed he was not paid for annual leave or for holidays, effectively claiming he did not take any annual leave aside from one discrete period and was entitled to payment going back years.
The ERA found that no records were kept evidencing when or if leave was taken, with what records existed being business records concerning health and safety and product information.
The ERA rejected the worker's evidence that he never took annual leave but found uncertainty about leave entitlement, given the absence of record-keeping.
The Authority considered it more likely than not that the worker did not use his full annual leave entitlement each year for the final five years of employment, finding an appropriate measure of unused leave was two weeks for each year, totaling 10 weeks due.
For public holiday pay claims, the worker contended he worked "overtime on public days throughout the annual Christmas closure" without additional compensation.
The ERA found it implausible that the worker carried out significant work on public holidays for which he was not paid, finding insufficient evidential basis given the absence of reasonable detail about the days in question.
Wage deduction arrangement and equity assessment
The worker claimed unauthorised deductions were made from his wages by his mother, seeking reimbursement of $151.24 per week.
Evidence showed a regular sum was deposited directly into an account in the mother's name without being paid in wages directly to the worker.
The mother's evidence indicated the worker was having financial issues in 2012, and she agreed to help by setting up automatic payment from his earnings to a separate account in her name.
She would then apply funds to his debts and expenses, with the worker being paid any excess in cash on request as a private arrangement outside the employment relationship.
The ERA reviewed bank account records and found them consistent with the mother's evidence, with outgoing payments to utility companies, credit facilities, traffic enforcement, medical and legal bills, and other services for the worker's benefit.
The Authority found there was a consensual arrangement and declined to order reimbursement as a matter of equity and good conscience. The employers' counterclaim for return of allegedly taken property was also unsuccessful.
