Illegal To Contract Out Of Holidays Act - $13,500 awarded to Employee

Mr Odisho, worked for La Bella Italia, as its cleaner for 3 years. In August 2011 that relationship came to an end after Mr Odisho overslept and did not come into work.

He raised a personal grievance which was heard by the Employment Relations Authority.

He claims he was unjustifiably constructively dismissed, both because of La Bella Italia’s reaction to his oversleeping and its ongoing poor treatment of him.

He also claims that he is entitled to payment for sick leave, statutory holidays and annual holidays for the period he worked, because it is unlawful to contract out of the Holidays Act 2003, even although he had agreed that his work for the company would not entitle him to such payments.

Mr Odisho also claims penalties for the failure of La Bella Italia to keep a wages and time record of his work.

La Bella Italia denies that Mr Odisho was ever an employee of it, but rather a contractor, and that in any event he was not unjustifiably dismissed, but left of his own accord.

After reviewing the evidence, the ERA determined that Mr Odisho was actually an employee of La Bella Italia.

"It follows that despite what Mr Odisho agreed, i.e. not to receive any forms of holiday pay, that being in an employment relationship the parties were unable to contract out of the Holidays Act, and he is entitled to claim for unpaid leave."

The ERA determined that Mr Odisho was the one who did not come back to work after being requested to do so and therefore this can only be a claim for constructive dismissal. "I conclude that Mr Odisho was not dismissed and neither was he constructively dismissed. There is no evidence of improper motives here. I conclude that Mr Odisho had simply had enough of working for La Bella Italia, and that it could be said that the relationship came to a natural end."
 
The requirements on Mr Odisho were not overly onerous, as proven by the fact that he managed to do the work well for the first two years or more of his employment. Given therefore that there was no breach of duty by La Bella Italia, who simply asked him to come into work to do the work he was paid to do, and the standards set were not unreasonable, it follows that there can be no successful claim for constructive dismissal.

The ERA ordered La Bella Italia Distributors Limited, to pay to Mr Odisho, $5,786.18 net in holiday pay, $317.39 net in sick pay improperly deducted, $293.40 net in unpaid statutory holiday leave, and $7,141.90 net for statutory holidays worked.