[debnjohn]

My 16-year-old son has worked part-time for a local Fresh Choice supermarket for the last 18 months. Last week (for some unknown reason he won't divulge) he decided to jack in the job, and handed back his uniform.
His normal pay-day is a Wednesday, and his average wage is about $70. However, he had worked a considerable amount of overtime the week previous, and was due to pick up about $200. No wages have been paid. He has asked his direct manager why this is, and he has told my son to speak to the Franchise owner who occassionally visist the store (so far my son hasn't been able to speak to her). He spoke to a duty-manager today, who has told my son that he won't get any wages as he didn't work 2 weeks notice.

1) Is this right about witholding the notice period wages?
2)Would they still have to pay my son the holiday money he has accrued?

Cheers,
John

[jubjub]

Does not sound very fair to me, but this site will probably help you find the legal answer and take it from there?

http://www.ers.govt.nz/pay/

[Andy-Dee]

Don't know about NZ but in Uk would be called unlawful deduction of wages. He would not be entitled to notice period wages as he didn't give any.
Holiday is accruable and payable - but in some contracts of employment a full month must be worked in order to accue for that particular month. e.g. if 6 months 2 weeks worked may only be entitled to 6 months pro rata, the 2 weeks is not counted.

Hope that helps

[swissmissdesigner]

same in US, it is an unlawful deduction...

[anna_c]

As regards the deduction in lieu of notice, it is allowed if and only if it is stated in his employment agreement. This will in any case only apply to his usual pay, not the overtime.
See http://www.ers.govt.nz/relationships/ending.html#resignation

He is also entitled to holiday pay for the period he worked if it has not already been paid it and it has been given a separate line on his payslip.

[debnjohn]

Does not sound very fair to me, but this site will probably help you find the legal answer and take it from there?

http://www.ers.govt.nz/pay/

Thanks Sal,
took a look at the site and:
The Holidays Act 2003 entitles an employee to a minimum of four weeks of annual holidays after working for one year. The purpose of this is to provide the employee with time off work for rest and recreation. Receiving money in exchange for not taking the leave would be against the intentions of the Holidays Act, even if the employer and the employee both agree. Following from this point, holiday pay can only be paid when:

the employee takes the holiday (and the payment must be proportional to the amount of leave taken); or
on the termination of their employment
So it seems that at the verty least he should get his holiday pay - according to his last wage slip this was $50.39. Not sure what to do now, as he needs to fight his own battles (he still hasn't told me why he quit the job). However, I think he will have problems with this particular franchise owner...

John

[debnjohn]

As regards the deduction in lieu of notice, it is allowed if and only if it is stated in his employment agreement. This will in any case only apply to his usual pay, not the overtime.
See http://www.ers.govt.nz/relationships/ending.html#resignation

He is also entitled to holiday pay for the period he worked if it has not already been paid it and it has been given a separate line on his payslip.

Thanks Anna.
Joe (my son) never got a copy of his agreement as far as I know. He did have to sign something, but he never had a copy. He was promised one when he first started, but it never materialised.

Yes the holiday pay is on a seperate line.

I do distinctly remember when Joe first started he brought home a dog-eared staff rule book on strict loan for a day. I scoured it carefully from cover to cover, and discovered that he was entitled to staff discount. However, when I asked the owner about this (after waiting patiently in the middle of the supermarket for several minutes) I was given a very public and dismissive put-down 'that doesn't apply to part-timers' (not stated in the staff book). Hmmm, I thought, these arn't particularly friendly owner-operators. The lack of discount didn't paticularly bother me as their prices are more than (staff-discount) 10% higher than my local Pak-n-Save, but I didn't like the public dressing-down.
Cheers,
John

[Ana&Steve]

From everything you've said, it doesn't sound like a place your son would be happy working at anyway, whatever his reasons for quitting were! I hope it all works out, and he finds a nicer job.
Ana

[willowshouse]

Doesn't sound like he is going to get his money without a fight :mad:

I had an employer do this to me when I was 16 .. my crime? I handed in my notice as I was due to go to college. I worked my notice and at the end of the week there were no wages for me. The 'Manager' of the store just said I'd have to go to the other shop and collect them .. so I did. They told me he was busy so I said I'd wait and basically he got bored hiding from me as I obviously wasn't going to go away... so he sent my wage packet out with a member of staff.

I don't know the law here in NZ but this sounds entirely wrong .. your son will need to be persistant and probably make a fuss but he will feel good about it when he gets his money. Do they have citizen's advice here? Maybe he could check it out .. As a last resort he could always stand outside the store with a petition for the locals to sign .. I reckon they might pay up quite quickly just to get rid of the 'problem' .. and you know the local papers here never have anything decent to write about, they'd probably love a good local scandal.

As a start I would say that if it is the Franchise Manager that is withholding the money then she should at least speak to your son herself and stop avoiding him.

Another thought, as it's a Franchise maybe contact the Head Office .. I doubt they'd be impressed by the situation and could force the Franchise Manager to 'deal with it'.

I hope he get's it sorted .. and as already mentioned, he is best off out of it!

Dawn

[Milliemoo]

Last week (for some unknown reason he won't divulge) he decided to jack in the job

Hi there,

This is a really tricky situation to be in, especially if he doesn't have a copy of the contract he signed, although I'm sure the company are leagally obligued to provide him with a copy of his contract. Once he has that he can go through it with a fine-tooth comb to check the conditions regarding either party breaking the contract (which it sounds like your son has done). I'd also try and get to the bottom of why he actually left without giving his notice before embarking on any publicity.

I hope you get it all sorted and he gets his money back :nice1

Milliemoo

[Andy-Dee]

He needs to send a letter outlining what he believes he is entitled to and a reasonable timeframe in which he expects to recieve it, after that it will be turned over to his Solicitor.
This usually does the trick.

[BaldyBeardyBloke]

Given your experience, as an adult, dealing with them, it sounds to me like they're simply taking advantage of the fact that he's only 16 and a part timer to attempt to rip him off.

They probably do this a lot and don't expect the employees to have the guts to make much of a fuss (and, I suspect get away with it on the whole).

I agree he should be the one to drive any complaint (he has to learn to deal with the nastier things in life), but I would cetainly be encouraging him to do just that and how to go about it, initially in person then in writing. Employers shouldn't be allowed to get away with this sort of behaviour.

[debnjohn]

Hi there,

This is a really tricky situation to be in, especially if he doesn't have a copy of the contract he signed, although I'm sure the company are leagally obligued to provide him with a copy of his contract. Once he has that he can go through it with a fine-tooth comb to check the conditions regarding either party breaking the contract (which it sounds like your son has done). I'd also try and get to the bottom of why he actually left without giving his notice before embarking on any publicity.

I hope you get it all sorted and he gets his money back :nice1

Milliemoo
Thanks, yes I've told Joe he needs to get a copy of that contract. I would love to know why he jacked in the job. believe me, I know my son is no angel, but it just seems out of character. He has worked there for 18 months, was always asking for more hours and only 2 weeks ago was talking about trying for an apprenticeship in the department where he works.
As for publicity, I wouldn't go down that route. My bad experience with the owner was just that - mine. He might have been having a bad day, or might even have sold the business by now (I never darkened their door again).

Cheers,
John

[debnjohn]

Doesn't sound like he is going to get his money without a fight :mad:
...
Another thought, as it's a Franchise maybe contact the Head Office .. I doubt they'd be impressed by the situation and could force the Franchise Manager to 'deal with it'.

I hope he get's it sorted .. and as already mentioned, he is best off out of it!

Dawn
Thanks Dawn,
I did send a simple enquiry to Progressive enterprises (Woolworths/Fresh Choice parent company to see if there was a standard employment agreement. Most impressed to get a reply within an hour (on a Saturday - good going I thought):
Dear John
Thank you for your email.Fresh choice should use standard employment agreement but since they are franchises they should have their own discretion
If we can be of any further assistance, please do not hesitate to contact us.

[debnjohn]

He needs to send a letter outlining what he believes he is entitled to and a reasonable timeframe in which he expects to recieve it, after that it will be turned over to his Solicitor.
This usually does the trick.
A letter is a really good idea Andy, thanks.
If Joe doesn't get any joy by next week I'll help him write one. Not sure about the solicitor bit though as it's not something we would do - not unless I knew Joe had been harrassed or bullied into leaving (which I doubt).
Cheers,
John

[debnjohn]

Given your experience, as an adult, dealing with them, it sounds to me like they're simply taking advantage of the fact that he's only 16 and a part timer to attempt to rip him off.

They probably do this a lot and don't expect the employees to have the guts to make much of a fuss (and, I suspect get away with it on the whole).

I agree he should be the one to drive any complaint (he has to learn to deal with the nastier things in life), but I would cetainly be encouraging him to do just that and how to go about it, initially in person then in writing. Employers shouldn't be allowed to get away with this sort of behaviour.

Yes, excellent advice.
Thanks everyone for your input.
Cheers,
John

[eternalkiwi]

If you contact the Employment relations Service (ERS) which is part of the Department of Labour, they will also be able to provide advise and assistance.

With the passing of the Employment Relations Act, the government has placed more resources for the ERA agency.

Your son is legally entitled to a signed copy of his contract and entitled to be paid for the hours he has worked plus his holiday pay less 2 weeks (normal) pay in lieu of notice.

Shawn

[debnjohn]

If you contact the Employment relations Service (ERS) which is part of the Department of Labour, they will also be able to provide advise and assistance.

With the passing of the Employment Relations Act, the government has placed more resources for the ERA agency.

Your son is legally entitled to a signed copy of his contract and entitled to be paid for the hours he has worked plus his holiday pay less 2 weeks (normal) pay in lieu of notice.

Shawn
Thanks Shawn,
I will contact them next week if Joe has no luck with the owner.
Cheers,
John

[JCM]

A letter is a really good idea Andy, thanks.
If Joe doesn't get any joy by next week I'll help him write one. Not sure about the solicitor bit though as it's not something we would do - not unless I knew Joe had been harrassed or bullied into leaving (which I doubt).
Cheers,
John

Rather than a solicitor, if you make no progress in other ways, you could consider using a disputes tribunal.

Disputes Tribunal

Disputes Tribunals are not like formal courts. There are no lawyers or judges.

Disputes are heard by a referee who has been carefully selected and trained.

A referee is someone who will either help you to come to your own solution or will determine your dispute. Any ruling they make is binding and will, if necessary, be enforced by the Courts.

http://www.justice.govt.nz/tribunals/disputes_tribunals.html

The Disputes Tribunal hears civil disputes where the amount in dispute is under $7,500. If everyone involved agrees, the amount decided can be up to $12,000. Disputes for larger amounts should be filed in the District Court. There are some matters that cannot be brought to the Disputes Tribunal - see the Disputes Tribunal General Information Booklet. The Disputes Tribunal was formerly called the Small Claims Tribunal.

http://newzealand.govt.nz/contact?recordid=13262

[debnjohn]

Today Joe received a copy of his contract in the post - I think this was as a result of my emailing Progressive Foods on several occasions - the emails were passed on to the franchise owner.

Yes, thay can keep Joes wages / overtime / holiday pay. The contract states:
"Two weeks notice of termination shall be given in writing by either party. Where employment is teminated without the required notice, equivalent wages shall be paid or forfeited as the case may be"

Joe left work mid shift on Friday 1st. Freshchoice have sent a proposed roster that Joe should have worked totalling 35 hours, which must negate his wages owed + overtime + holiday pay.
"Equivalent wages to be forfeited to Freshchoice Parklands for the employment terminated without the required notice"

This seems a bit mean to me, as Joe's normal week wasn't 17.5 hours a week (that would have been overtime as well, as Joe only used to work part time on a Wed, Fri & Sun). The other odd thing is they have quoted for THREE Fridays in the 2 weeks unworked notice (convenient for them as Friday has the longest - 7 - hours worked )

Motto - check your employment contract. If you don't have a copy ask for one.

Cheers,
John

[victoria]

Putting in my 10 cents . . . yes there is a citizens advice bureau in NZ. Might be worth seeing if there is one in your locality.
Oh the trials & tribulations of starting your first job. I was stuffed by an employer over pay a million years ago too.
Hope an outcome is forthcoming.

[Andy-Dee]

Not familiar with NZ employment law & curious, as I'm sure you are, to understand why he felt he had to leave so abruptly. BUT I think its worth querying their figures and ask for precedent regarding other employees who have left and not worked full notice. You usually find that when it suits the employer they will let employees go without working notice and pay them in leiu of notice e.g. a salesperson, an irritant etc etc.

If there is precedent - I would again appeal to the parent company and mention the word 'Solicitor' it is irrelevent whether you use one or not - the thought that you are not going away anytime soon and will cost them time and money to prepare, defend their actions usually gets them to settle (for this read 'do the right thing').

Good Luck

[eternalkiwi]

When you next contact the ERS I would query with them the legality of including overtime in the notice period.

From memory the hours can only be his set hours or possibly his average hours over a certain period of time (maybe 3 or 6 months).

The ERS can also provide advice on what steps to take and give you information about the process of lodging a claim with the Employment Relations Authority.

Shawn

[debnjohn]

When you next contact the ERS I would query with them the legality of including overtime in the notice period.

From memory the hours can only be his set hours or possibly his average hours over a certain period of time (maybe 3 or 6 months).

The ERS can also provide advice on what steps to take and give you information about the process of lodging a claim with the Employment Relations Authority.

Shawn

Thanks Shawn,
I'm not going to pursue this any further. I am sure the franchisee concerned will make things as slow and difficult as possible (judging by events so far) and it is not worth the time and aggravation. Joe was only earning $9 an hour, and his hours changed from week to week on a roster.

I did ask ERS about the holiday pay, and yes this employer is allowed to take it. I am sure that they have their punitive employment contract pretty watertight, so as I said before it is not worth the aggro.

Cheers,
John