As an employer you have an obligation to ensure that all employees are paid correctly when they have resigned and/or have been terminated from their employment. In many cases, employees will be required to work out their notice period, however in a number of cases, employers may elect to pay an employee in lieu of working out the notice period.
While it might seem simple, determining when the correct start date for the beginning of the notice period begins, and when it ends, is not always that straightforward.
Within a recent case at the Employment Relations Authority (ERA) – Philip Tighe-Umbers v Jetconnect Limited [2024] NZERA 234 3182779 the Authority Member was required to address this question.
See – https://determinations.era.govt.nz/determination/view/19478
Mr Tighe-Umbers raised a Statement of Problem with the Authority claiming he was unjustifiably dismissed by the Jetconnect Limited, with Mr Tighe-Umbers seeking a declaration that Jetconnect Limited was required to give three (3) months’ clear notice and that they failed to do this, with Mr Tighe-Umbers stating his notice period was a day short.
The Authority Member in this case had to determine when the notice period begins, and when it ends, in order to determine whether Mr Tighe-Umbers was paid correctly.
Jetconnect Limited had to stop operating when COVID-19 commenced. However, when travelling was later permitted, all crew, pilots and captains were required to receive training in Melbourne prior to operating again, with all staff being required to be vaccinated to travel to attend training.
Mr Tighe-Umbers elected not to receive a COVID-19 vaccination and was therefore prohibited from travelling to and from Melbourne for the required training. Jetconnect Limited then declined Mr Tighe-Umbers’ proposal to remain on leave without pay until the boarder restrictions ended, with no other work being available for Mr Tighe-Umbers to perform until boarder restrictions ended.
Jetconnect Limited therefore provided Mr Tighe-Umbers with a letter on 25 January 2022 providing three (3) months’ notice of termination, with the termination date being stated as 24 April 2022. Mr Tighe-Umbers however stated that he should have been paid through until 25 April.
In its defense, Jetconnect Limited relied upon s56 of the Legislation Act 2019 for calculating the periods of notice, using the following example:
- If the legislation refers to a period of one (1) month starting on 25 January, the notice period start date will start on 25 January and end at the close of business on 24 February.
Based on the information provided by Jetconnect Limited, the Authority Member determined that Jetconnect’s approach in interpreting and implementing the notice provisions of the Collective Agreement was correct. This being that, the three (3) months’ notice period started on 25 January 2022, the day after the notice was given and ends on 24 April 2022, immediately before the corresponding date in the ending month.
If you have any concerns regarding the issues around the final termination arrangements for an employee, please feel free to contact a member of our team.