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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 14936
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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Employee worked from 29/10/13- 19/4/16, I am in New Zealand,

Customer Question

employee worked from 29/10/13- 19/4/16
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: I am in New Zealand
JA: Has anything been filed or reported?
Customer: Not yet
JA: Anything else you want the lawyer to know before I connect you?
Customer: employee started 29/10/13- left 19/4/16
Holidays agreed -20 days per year in line with employment act.
1st year-15 days +5 days cash (by agreement in advance.
2nd year- 20 days- (by agreement in advance)
3rd year 20 days
Employee walked out on 19/4/16
after having taken 10 days holiday.
He is now asking for 10 days pay (holiday balance) + 8% of annual salary
Salary :$ 63024 annual gross
Weekly: $1212 gross
Submitted: 5 months ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 5 months ago.

Have you asked this twice for some reason?

Customer: replied 5 months ago.
No The 1st attempt failed so I tried again and got through to you
Expert:  Chris The Lawyer replied 5 months ago.

You have the answers on the first question

Customer: replied 5 months ago.
I cannot find any response from the first attempt to contact this web site. are you saying that it is your 1st answer that is in explanation or that of JA on 1st attemtp to contact your site? Sorry I am confused
Expert:  Chris The Lawyer replied 5 months ago.

You have asked two questions. i have answered the first one. This is the same question, but on a new thread

Expert:  Chris The Lawyer replied 5 months ago.

Here is the dialogue on the first thread

Me

If the holidays have been taken in advance, then you would only owe the holiday pay at the anniversary of the last holiday. Holiday pay is accumulative, so if it is taken in advance, then the further entitlement starts at the anniversary. If he leaves a year after the last holiday, then you may owe nothing

12 May 2017, 6:35 PM

Customer

I think a line in my original email went astray.
He took the holidays as stated.
Are you familiar with NZ employment law?
1st year he is not entitled to any holidays but can take holidays in advance by agreement. The days taken are deducted from the following years entitlement.He did this in 2nd year in 3rd year he took ten days but left approx half way through year. He states that he is still owed 10 days plus 8% of his annual salary. Is he correct

12 May 2017, 7:20 PM

Me

I am new ealand lawyer based in Wellington and familar with employment law

12 May 2017, 7:22 PM

Customer

I would prefer a written response so that I can produce it at our next mwwting

12 May 2017, 7:22 PM

Me

If he did not take the holidays in the first year, the issue may be whether your employment contract permits banking of holidays. Does it do that? Some contracts say that if you dont take the holidays in the year they then cannot be taken. But most do permit accumulation. So at the end of year one he has 4 weeks. The next year he has the same and in the last year it is 2 weeks (more or less), so you look at what time he has taken out of that period of 2.5 years, and then see if he is owed more

12 May 2017, 7:26 PM

Customer

In the 1st year he took Holidays:
year 1- 15 days +5 days cash(by agreement)

year 2- 20 days

year 3- 9 days

TOTAL: 44 days
My question relates to the last year. I calculated that he started the year with no owing holidays and started to take them in advance against the entitlement for the next year ( 2017) but having left before the end of 2107 he says he is still entitled to the balance of the annual amount of 20 days + 8%. Are you able to explain his thinking

12 May 2017, 7:35 PM

Customer

Did you get my last email

12 May 2017, 7:40 PM

Me

This isnt an email system, it is based on posts on this forum.

But I agree with your calculation. If he started with no holidays owing he only gets the proportion of the period he works, not the holidays in advance