83 Failure to keep or provide access to holiday and leave record

(1)

Evidence that an employer has failed to comply with section 81 or section 82 may be given in an action before the Authority—

(a)

to recover holiday pay or leave pay from an employer; or

(b)

to enforce an entitlement to annual holidays, public holidays, sick leave, bereavement leave, or family violence leave against an employer.

(2)

To avoid doubt, for the purposes of subsection (1), an action before the Authority includes the determination of an objection to—

(a)

an improvement notice issued under section 223D of the Employment Relations Act 2000 that relates to holiday pay; or

(b)

a demand notice served under section 224 of the Employment Relations Act 2000 that relates to holiday pay.

(3)

If, after hearing the evidence, the Authority is satisfied that the employer failed to comply with section 81 or section 82 and that the failure prevented the claimant from bringing an accurate claim, the Authority may make a finding to that effect.

(4)

If a finding under subsection (3) is made, then the Authority may accept as proved, in the absence of evidence to the contrary, statements made by the employee about—

(a)

holiday pay or leave pay actually paid to the employee:

(b)

annual holidays, public holidays, sick leave, bereavement leave, or family violence leave actually taken by the employee.

Section 83(1)(b): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 83(1)(b): amended, on 1 April 2019, by section 35 of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).

Section 83(2): substituted, on 1 April 2011, by section 40 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 83(4)(b): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 83(4)(b): amended, on 1 April 2019, by section 35 of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).