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LETS GET DOWN TO BUSINESS.

Question :
I have asked my employer if they can pay me 2 days of my leave per week as they are only paying me the wage subsidy and I have over 550 hours accrued. He has declined… do I have any rights to get my leave entitlement other than resigning? 

Question submitted 20/04/20 @ 10:03pm
Industry: HR & Talent
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  • Hi there

    I’m not qualified for this one. It found this which might help you get to the bottom of it. Give the 0800 number a call?

    What if I have a complaint about how my employer has paid me?
    If you have a complaint because you think your employer is breaching any of their minimum employment obligations to you, you can contact Employment NZ by calling on 0800 20 90 20 or by email at info@employment.govt.nz.

    All the best
    Anna

    Hi there. By law, employers must not ‘unreasonably withhold’ approval for annual leave. If they decline, a reason must be given. You have a significant amount of accrued annual leave, and in normal circumstances you would expect an employer to have provisioned for this liability so the reason shouldn’t usually be ‘money’. I would encourage you to talk with your employer again, point them in the direction of this website (https://www.employment.govt.nz/leave-and-holidays/annual-holidays/taking-annual-holidays/) and if they remain unwilling to revisit the decision, then you should seek advice as Anna has suggested above, or from an employment lawyer, or from your union if you are a member of one. Best wishes Fiona

    This could be a difficult time, cashflow wise, for your Employer. So we encourage you to have an open conversation with them, to find a win-win option. Whilst you could resign, and you would be entitled to receive in your last pay, any outstanding leave payments, there is no guarantee that the business you work will have the funds immediately available for payment. Please note that you are not entitled to any accrued sick leave entitlements if you resign.

    Normally a business would have been accruing annual leave and putting aside the required funds (like how they should be treating things like taxes) however during these difficult times businesses may have drawn from reserves. You rightly should ensure that you receive your entitlements. At the same time, we encourage you to think about the potential impacts of resigning to you and others. It is always best, for you, when you can leave an employer on a positive note.

    Just to confirm – do you work a 40-hour week? If so, 550 hours of Annual Leave Entitlement would be 13.75 weeks of annual leave that have been accumulated. The leave balance should never have been gone this high. It is important that for your welfare that you take 4 weeks annual leave each year.

    Do you only earn 4 weeks Annual Leave per year? If the answer is yes, then when was the last time you took annual leave for at least 2 weeks consecutively? An Employee has a right to take 2 weeks annual leave in a row at least once per year, and an Employer cannot unreasonably refuse this. The relevant Holidays Act 2003 excerpt reads:

    “Section 18 – Taking of annual holidays

    (1) An employer must allow an employee to take annual holidays within 12 months after the date on which the employee’s entitlement to the holidays arose.
    (2) If an employee elects to do so, the employer must allow the employee to take at least 2 weeks of his or her annual holidays entitlement in a continuous period.
    (3) When annual holidays are to be taken by the employee is to be agreed between the employer and employee.
    (4) An employer must not unreasonably withhold consent to an employee’s request to take annual holidays.”

    If you have earnt more than 4 weeks annual leave per year, which would be over and above legislative provisions, this can be cashed out at the Employer’s discretion. If you want to stay with the employer, then you discuss this with them and look at ways to either use and/or be paid out some of the leave.

    If your Employer continues to turn down your requests, and you cannot come to an agreement, then you do have potential to raise a grievance against your Employer. Prior to this point we would encourage an open dialogue with your employer to see if an agreeable solution can be reached.

    Until the government changes the rules again to suit itself there are only three ways to get to annual leave monies:

    1) If you have more than two (three?) weeks accrued you can on your employers agreement , opt to have 1 weeks worth a year “bought out” by your employer. This is relative recent legislation (ie in last 20 years). Not all employers have the cashflow for this so there is much more leeway for employers to say no.

    2) As you have mentioned, resign, which technically means you go on leave (thus receiving all your days leave) before the end of your contract.

    3) Take annual leave. This means you get your annual leave amount…. but you get no advantage from the subsidy.

    The last two options have firmly been root in NZ Employment law for a long time, firstly to stop employers forcing people to stay labouring and using unwritten bias to ensure any that actually took a break would be penalised. By locking the inability to redeem the days for cash stopped that occurring.
    The other reason is the government of the day (Edwardian times) decided politically for economic reasons that peoples’ health was suffering because of no breaks, and they decided on “weekends” and eventually 40 hour work week, so a leisure market could be invented. Many poorer people didn’t have the money for such malarkey, but “to stop their employers taking advantage of them” it got made into law so applied to everyone (Liberalists will accept anything as long as it affects everyone – One Law, everything is fair if neither rich man or poor can steal bread or live under a bridge). And it has been locked into law, and Union reinforced, that “Employees requirement two (then three, and now four) weeks off in leave every year for physical, emotional, and psychological recovery”. Thus being a political move, based on national economic interference by government, it was enshrined rigidly into policy and legal requirements.

    Not a lawyer, not qualified to give legal advice. This is general information and my personal opinion, offered to help inform and entertain. For any particular legal matter you will need to contact a local specialist in your jurisdiction with skill and certification in the relevant speciality of law that pertains to your particular situation.

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