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Speaker 1: You're listening to a podcast from News Talk zed B.

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Speaker 1: Follow this and our wide range of podcasts now on iHeartRadio.

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Speaker 2: Gareth Abdenaor is an employment, workplace and information expert and

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Speaker 2: he's also director of Abdenor Employment Law. His website is

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Speaker 2: Abdenorlaw dot Nzi. Joins us once a month, of course

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Speaker 2: to answer your questions, and he is back with us

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Speaker 2: right now, Gareth, get it to you. Gooday, guys, how

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Speaker 2: you doing very very well? Now we've had a flood

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Speaker 2: of texts already come in, Gareth, so if you don't mind,

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Speaker 2: we'll get straight into it. Sounds good this one here,

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Speaker 2: get a Gareth. My employer has advised by letter to

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Speaker 2: all current employees that they have been calculating holiday pay.

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Speaker 2: I'm sorry to start off with this one, Gareth. I

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Speaker 2: should have preread this one.

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Speaker 3: I'm just rocking myself while sucking on my thumb.

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Speaker 2: Oh the trauma that we put you through, so I'll

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Speaker 2: carry on. Have been calculating holiday pay incorrectly, and to

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Speaker 2: fix the problem, they have recalculated what people are owed

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Speaker 2: up to six years. The thing is, I've worked for

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Speaker 2: the company for twenty five years. Aren't they required to

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Speaker 2: pay me out for twenty five years, not for six.

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Speaker 3: Oh yeah, this is a doozy, isn't it. It is well,

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Speaker 3: this business is not alone because as we know, I

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Speaker 3: love the Holidays Act and it makes it pretty pretty

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Speaker 3: difficult to pay someone the correct amount even if you

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Speaker 3: want to. There is a limitation period here, and that's

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Speaker 3: why they're going back six years. You can certainly try

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Speaker 3: and claim the twenty five years, but you're not going

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Speaker 3: to have a legal case for it.

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Speaker 2: Yeah.

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Speaker 4: Right, So is that six years? Because often things are

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Speaker 4: seven years, aren't they Is it a six year.

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Speaker 3: Six years here? I think seven years is for some

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Speaker 3: records and tax stuff, right, yeah, so yeah, I think

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Speaker 3: I would most probably take the money and enjoy it

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Speaker 3: because it's unexpected money that you're getting. You can make

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Speaker 3: an argument for the full twenty five years worth, but

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Speaker 3: if you push it too hard, the business might not

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Speaker 3: still be in business.

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Speaker 2: Yeah.

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Speaker 4: Yeah, I mean that is rough though. Nineteen years incorrect,

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Speaker 4: But yeah, I mean it's just the practicality of existence,

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Speaker 4: isn't it. So totally I think it's just the six

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Speaker 4: years for you, I'm afraid, But thank you so much

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Speaker 4: for your text, Sharon. Welcome to the show.

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Speaker 5: Hi, how are you, Gareth is on Hey, I've got

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Speaker 5: a question for you. My husband's going to be on

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Speaker 5: annual leave over the Christmas break for a week. However,

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Speaker 5: during the annually time, he's required to be on call

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Speaker 5: as well. I'm just wondering how that works. As I

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Speaker 5: say it, if you're on annual leave in no phone, no,

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Speaker 5: you're away from work, you've got your car, nical wellbeing,

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Speaker 5: you're entitled to your four weeks. But if you're on

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Speaker 5: call as well, so you would get paid for your

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Speaker 5: holiday pay for a week, but then you'd be required

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Speaker 5: to work outside of or anytime actually and get paid

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Speaker 5: anything on call, but you might not get called out.

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Speaker 3: This is a very very tricky one, Sharon, and a

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Speaker 3: lot depends on what the restrictions are going to be

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Speaker 3: on your husband's time and the activities he can do.

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Speaker 3: It's a vexed issue that has gone through several court

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Speaker 3: processes and it's still a bit vague, and it really

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Speaker 3: comes down to the particular circumstances of each employment relationship.

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Speaker 3: You know, for example, if it's a job where your

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Speaker 3: husband is prevented from drinking alcohol while he's on call

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Speaker 3: or needs to be close to home, so that he

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Speaker 3: can get to work within a certain period of time.

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Speaker 3: There is likely to be an argument that he's actually

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Speaker 3: working and he should be paid as if he was working.

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Speaker 3: In other cases, being on call actually doesn't really limit

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Speaker 3: you much at all.

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Speaker 5: And you know it might.

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Speaker 3: Be that if someone calls, you need to get back

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Speaker 3: to them within a few hours, and so it really depends.

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Speaker 3: I would go through that with your husband, look at

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Speaker 3: what the restrictions are, and then start a discussion with

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Speaker 3: the employer. In most cases where people are expected to

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Speaker 3: be on call as if they were actually working, this

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Speaker 3: is due to the employer not having turned their mind

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Speaker 3: to it, rather than them sitting in a back room

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Speaker 3: thinking about how they can take advantage of someone. So

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Speaker 3: start a conversation and see where you get to all

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Speaker 3: the best.

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Speaker 2: Yeah, well, sharing, thank you very much for giving us

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Speaker 2: a buzz.

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Speaker 4: Oh, it's no holiday at all unless you can rest,

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Speaker 4: and that's right on call, you're not, it's not a

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Speaker 4: holiday at all.

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Speaker 2: Yeah, and I didn't realize, So, Gareth, can you on

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Speaker 2: call and not be paid for that? I would have

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Speaker 2: thought it's not a legislation that they have to pay.

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Speaker 3: There definitely needs to be some payment the question is

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Speaker 3: how much are you going to be paid the full

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Speaker 3: amount or not? And of course if you actually get

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Speaker 3: called out during that period on call, how much are

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Speaker 3: you going to be paid then? So definitely not a

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Speaker 3: straightforward question.

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Speaker 2: Yeah. Oh, one hundred and eighty ten eighty is the

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Speaker 2: number to call if you've got a question. For Gareth,

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Speaker 2: he is with us for about another fifteen minutes.

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Speaker 4: He's interesting text that's come through. We have never been

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Speaker 4: told that we're not allowed to hook up with other staff.

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Speaker 4: My new girlfriend works on another floor. My manager saw

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Speaker 4: us at a pub told me I should have told

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Speaker 4: him and that this was a problem or could be

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Speaker 4: a problem. Is it illegal to be with staff? Can't

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Speaker 4: see nothing in my contract?

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Speaker 2: Spicy?

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Speaker 3: Yeah yeah, yeah, man, they coming out with all the

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Speaker 3: saucy ones today, aren't they. Really depends on what sort

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Speaker 3: of job it is and what the roles are. Some

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Speaker 3: workplaces prevent or prohibit relationships between a manager and a

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Speaker 3: subordinate for obvious reasons. Other workplaces require you to disclose

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Speaker 3: it so that that can be managed. Obviously, you don't

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Speaker 3: want accusations of favoritism or actual favoritism in this case.

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Speaker 3: If there's nothing in the employment agreement and there's no

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Speaker 3: policy of it. And the people work at the same

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Speaker 3: workplace but not directly in the same team or in

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Speaker 3: the same reporting line. You kind of wonder what's the issue.

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Speaker 3: So it sounds like this managers maybe going a bit

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Speaker 3: too far. It'd be interesting to know more about it.

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Speaker 4: A theory, well just wild theory. I don't know anything.

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Speaker 4: It's funny when you just get a text because more

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Speaker 4: information please nineteen nine to that texture. But the managers

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Speaker 4: seeing you at the pub with this other person, that

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Speaker 4: the managers out of line to bring that up right?

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Speaker 4: And does the manager fancy this person?

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Speaker 2: Highly?

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Speaker 6: Wow?

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Speaker 2: Possible? Yeah, we need more handle us well.

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Speaker 4: Otherwise it's such a weird thing to do. I saw

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Speaker 4: you out the pub other than gossiping or I mean,

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Speaker 4: that's an awkward position to put someone on. If there's

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Speaker 4: if you're allowed to see someone else, it's not in

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Speaker 4: the contract's not work hours, then why is the manager

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Speaker 4: bringing it up in this it's go gossip. But to

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Speaker 4: say it might be a problem, we need more. It

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Speaker 4: sounds like a soap opera.

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Speaker 2: It does, doesn't it? We love it?

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Speaker 4: Yeah, I reckon. You need to ask your manager if

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Speaker 4: he fancies this this new girlfriend of yours. Actually, to

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Speaker 4: be fair, I've assumed that's a that this is a

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Speaker 4: male sending through. I don't know, I thought my new girlfriend.

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Speaker 2: Okay, there we go.

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Speaker 4: Well, you know it could be made a lot of assumptions.

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Speaker 4: Send us more details nine two nine two and then

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Speaker 4: maybe we can give a more detailed answer to your question.

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Speaker 2: And we are joined by Gareth Abdenoy. He's an employment,

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Speaker 2: workplace and information expert and victor of abd or employment law.

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Speaker 2: Taking your calls and questions.

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Speaker 4: Tony, welcome the show.

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Speaker 6: Any boys, how are you very good?

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Speaker 3: Good?

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Speaker 6: Hi Gareth. The company that we worked for got hacked

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Speaker 6: last week and as a result, our system went down

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Speaker 6: and has been down for the last ten days. My

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Speaker 6: question is the company is asking us to take that

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Speaker 6: time that we haven't been able to go into the

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Speaker 6: office to take leave without pay, or they are taking

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Speaker 6: that time off of our leave. My question is can

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Speaker 6: they legally do that because the pack was obviously through

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Speaker 6: no fault of ours.

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Speaker 3: Yeah, that's a very tricky situation, isn't it. This is

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Speaker 3: one of those situations that does happen from time to

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Speaker 3: time time where the employer can't provide work The general

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Speaker 3: rule is they can't require you to take leave unless

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Speaker 3: they give you fourteen days notice of that requirement, and

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Speaker 3: even then they have to act in good faith. However,

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Speaker 3: they can ask you to take that time as leave,

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Speaker 3: whether and you'll leave or unpaid leave, and if you

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Speaker 3: agree then that's not a problem. Of course, some employment

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Speaker 3: agreements do have clauses that say if the employer can't

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Speaker 3: provide you with work through no fault of their own,

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Speaker 3: sometimes weather conditions as a common example of that, then

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Speaker 3: they don't have to pay you and they don't have

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Speaker 3: to provide work. So I would carefully check your employment agreement.

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Speaker 3: The other thing is I don't know what sort of

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Speaker 3: work you do or what sort of business it is,

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Speaker 3: but if they haven't been able to operate for ten days,

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Speaker 3: I imagine that the business is taking care a hit

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Speaker 3: in terms of income cash flow. And so sometimes you

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Speaker 3: need to think about do I want to win the

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Speaker 3: battle but lose the ending on how big and successful

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Speaker 3: the business is, you know, it might actually be a

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Speaker 3: good idea to show a bit of goodwill, not necessarily

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Speaker 3: agree with everything they're asking, but show some good will

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Speaker 3: when I'm sure that will be appreciated. If you don't

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Speaker 3: and you know that might have impactful ongoing employment, not directly,

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Speaker 3: but yeah, tricky situation for all involved.

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Speaker 6: Isn't it. It's very trickily, very tricky. Yeah.

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Speaker 2: Yeah, all the best with that, Tony, thank you very

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Speaker 2: much for ringing in. Jackie.

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Speaker 4: Your question for Gareth.

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Speaker 3: Him, Yes, but Peture can't putting me on air.

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Speaker 5: It's just a good question.

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Speaker 7: My Did she just.

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Speaker 4: Say please don't put me on air?

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Speaker 3: Yeah? I think so.

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Speaker 4: You're on it, you were on it.

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Speaker 2: Yeah, well yeah, we'll take you off ajag. We'll just

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Speaker 2: put your back to Andrew and maybe come.

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Speaker 4: Tell you you've gotta be careful when you ring eight

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Speaker 4: one hundred and eighteen eighty because you will often get

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Speaker 4: put on a Kevin.

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Speaker 2: Hey, HOWI very well. Gareth is standing by for you.

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Speaker 7: KIV Gareth. Hey, Gareth. My question is I used to

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Speaker 7: work for a crusty company. There used to be a

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Speaker 7: registry for qv SAB Funds, and I used to be

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Speaker 7: with them. I was working with I used to be

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Speaker 7: with them for more than twelve years, and then I

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Speaker 7: got a better job offer. I resigned on the seventh

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Speaker 7: of jan and my ansary was on the twenty second

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Speaker 7: of February, I had around fifty three or fifty four

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Speaker 7: days of annual leave and they didn't pay me the

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Speaker 7: full amount for twenty two days, just ten persons there.

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Speaker 7: What they said their contention was, I didn't work till

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Speaker 7: my ansty day and that's why I wasn't paid for

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Speaker 7: the full amount.

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Speaker 3: And yeah, that is a situation that occurs quite often.

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Speaker 3: There's a common misconception in terms of holidays. When you

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Speaker 3: finish up work. There's two different types of payments that happen.

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Speaker 3: There's payment for the leave which you've become entitled to,

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Speaker 3: which is the leave where you have passed your anniversary date,

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Speaker 3: and then there's a crude leave and there's a formula

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Speaker 3: in the Act for how that's paid out. Basically, it's

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Speaker 3: the accruede leave is paid out at eight percent of

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Speaker 3: your earnings for that year. So from what you've told me,

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Speaker 3: it sounds like the company has paid it out correctly,

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Speaker 3: although it does seem like quite a big difference. I

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Speaker 3: would just ask them for a breakdown. They are required

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Speaker 3: to bride you with a breakdown of your final pay

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Speaker 3: and that should show the two different amounts of leave.

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Speaker 7: Right, So, if I had taken annual leave. In should

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Speaker 7: I resigning right away, how would have been fair? Because

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Speaker 7: that's a few two days of annual leave.

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Speaker 3: There still would have been a difference for leave that

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Speaker 3: you had a crued but not become entitled to when

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Speaker 3: your final pay was processed. The only way that wouldn't

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Speaker 3: have happened is if you took all fifty two days leave.

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Speaker 3: But I'd be quite surprised if your employer would have

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Speaker 3: allowed you to do that. Okay, Yeah, the best thing

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Speaker 3: to do is to ask them for a breakdown and

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Speaker 3: that should set it out clearly for you.

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Speaker 2: Yeah, good luck with that, Kevin. One final question here

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Speaker 2: via text.

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Speaker 3: Not about the holidays?

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Speaker 2: Are not about the holiday at this One's a good

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Speaker 2: one though. Later I'm a permanent employee and I drive

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Speaker 2: a company vehicle. I think I should be paid when

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Speaker 2: between jobs, but they refuse to do that. Is that

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Speaker 2: under legislation?

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Speaker 3: That sounds quite surprising. Usually you would expect that to

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Speaker 3: be paid. It sounds like it's work, But of course

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Speaker 3: it really depends on what's in this employment agreement. It

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Speaker 3: depends on the nature of the work. Usually I would

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Speaker 3: expect an employee who was driving a work vehicle between

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Speaker 3: jobs to be paid for that travel time.

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Speaker 4: Well, this person that always has been the company our

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Speaker 4: stays she will they will only be pay her when

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Speaker 4: she arrived to site.

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Speaker 3: Yeah, okay, so that's that's slightly different. Often in the

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Speaker 3: construction industry it is agreed in the employment agreement that

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Speaker 3: payment only starts from the place of work, which is

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Speaker 3: the work site. In other cases there's a there's a

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Speaker 3: yar do or an office that they start from and

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Speaker 3: then the travel would be covered. It is a difficult

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Speaker 3: one because it really depends on what's been agreed between

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Speaker 3: the parties. Now, occasionally you find cases where there is

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Speaker 3: no employment agreement and it hasn't been set out what's

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Speaker 3: agreed between the parties, and the employee thinks they've agreed

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Speaker 3: to one thing and the company thinks they've agreed to

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Speaker 3: something else.

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Speaker 2: Yeah, no, very good, Gareth, thank you so much. As always,

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Speaker 2: we've got hundreds of textels. Save all those for next time,

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Speaker 2: and we promise we'll weed out those holiday bay ones.

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Speaker 2: We won't do that to you again.

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Speaker 3: It's to be fair and just like seeing me in pain, Yeah,

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Speaker 3: I do.

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Speaker 4: Actually, the problem is they're about ninety five percent of

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Speaker 4: the text of course, so yeah.

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Speaker 3: Yeah, I'll tell you what. There's going to be nothing

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Speaker 3: to discuss if they bring in this new act exactly.

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Speaker 2: Hey go well mate, always a pleasure having you on.

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Speaker 2: We'll catch up again soon.

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Speaker 3: Thanks.

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Speaker 7: Guys.

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Speaker 2: That is Gareth Abdenall employment will place an information ex

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Speaker 2: but you can check them out abdenor law dot in z.

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Speaker 2: He is very good at what he does.

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Speaker 1: For more from News Talk sed B. Listen live on

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