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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22813
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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I currently work large insurance company in Auckland, I have

Customer Question

I currently work for a large insurance company in Auckland, I have recently had an interview with another large insurance company in Auckland. I told my direct manager that i would be having an interview and needed the day off. He told me that because the new role would be a conflict of interest that as soon as i got the offer of employment i would have to leave straight away without working my 4 weeks notice period.
In my contract it states that if i have to leave straight away the notice period will be paid out.
I went for the interview at the new company and informed them that i would be able to start ASAP due to what my manager had told me.
When i returned to work on the Monday i was pulled into my operations managers office (my managers direct manager) and he told me that what my manager had told me was not the case and i would have to pay them 4 weeks salary if i wanted to leave early.
I find this unfair as because of the misinformation i was provided i will either lose income or not be able to start the new role and as I am a single income parent it has deeply affected me and caused me alot of stress.
Submitted: 1 year ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 1 year ago.

That is an unusual interpretation of employment law by your manager. You are entitled to give notice and be paid out, and to say you have to pay them is nonsense. Often in this situation you do have to leave right away, and take what is called gardening leave. But you are entitled to the pay, although if you are starting right away and the previous employer gets difficult you will at least not lose income. They must also pay holiday pay

Customer: replied 1 year ago.
Thanks Chris. So if my current employer does require me to work 4 weeks notice even after telling me that I am not required to and then changing their story,will I be entitled to garden leave if they've now changed their minds? I'm still not sure about a start date at new employer. I just feel lIke they choose to do what they want and I just have to accept it. Can I insist on garden leave based on my story and have a solid case should it end up in court?
Customer: replied 1 year ago.
if I decide not to work my 4 weeks notice, can they deduct 4 weeks salary from my accrued leave?
Expert:  Chris The Lawyer replied 1 year ago.

If they insist on you working out your leave, that would be unusual, and unlikely. If that was the case however you would not be asked to take gardening leave. If you get a start date from the new employer then leave and join them. If your former employer gets silly about payment you can ask a Labour Inspector to help get your wages which is a free service, and you could also claim a personal grievance for the shabby treatment. People change jobs all the time and they just need to get used to the idea, as they do not own you.

Expert:  Chris The Lawyer replied 1 year ago.

They cannot deduct the payment from your holiday pay, and if they try, this would also be a matter for the Labour Inspector and a personal grievance claim

Customer: replied 1 year ago.
I have a clause in my contract stating that if i do not work out my notice period they can deduct from my annual leave. are you saying this is not legal ?
Expert:  Chris The Lawyer replied 1 year ago.

That may be contrary to the Holidays Act. But if you give notice, and they ask you to leave without working out the notice, then that is not what the clause contemplated, and would then count as a dismissal and entitle you to claim damages, if they then tried to deduct your holiday pay.

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