A Wanaka businessman who unjustifiably fired his wife from the family business when their marriage broke down has succeeded in reducing the amount of holiday pay he must pay her.
Nicola McKay worked for the Wanaka Sun and Wanaka Pharmacy from 2005 to 2018.
Her ex-husband, Aaron Heath, is the sole shareholder and director of the companies. They have three children.
The Employment Relations Authority last year ordered the companies must pay Ms McKay just over $70,000: $57,334.24 for accrued holiday pay, as well as $13,000 in compensation for being unjustifiably dismissed.
The decision was appealed.
In a decision issued on July 21, Employment Court Judge Kathryn Beck said the finding of unjustifiable dismissal was not challenged.
She found the authority made an error by setting the starting point for Ms McKay’s holiday pay entitlement too high.
After considering evidence about the few, short holidays the pair took, Judge Beck found Ms Mckay was owed 32.25 weeks’ holiday pay ($41,378 gross, plus interest from date of judgement) for the 13 years she worked for the businesses.
She rejected Mr Heath’s claim his ex-wife should be paid for one week’s holiday per year (13 weeks).
Ms McKay accepted she took four overseas holidays.
The real question was whether the remainder of her short holidays were real holidays.
Ms McKay argued they were not; that even when she and Mr Heath were meant to be on holiday, she would work remotely for both companies; that she worked constantly and it made no difference where she was located; and she did not get a real opportunity for rest or recreation.
Mr Heath said he did not require Ms McKay to work while away, and even if she did, she did not work as much as she said she did.
Judge Beck found Ms McKay performed work on holiday and took her responsibilities seriously.
"Mr Heath says most inquiries could have waited ... However, having taken no steps to facilitate her holiday, for example by arranging cover or redirection, he cannot now be critical of Ms McKay for her diligence," the judge said.
However, Ms McKay could have paused social media while on holiday. The majority of that work was not required by the employer.
The case had to be looked at through the lens of a business being treated as a family business by both, the judge said.
"The position now taken by Mr Heath in another jurisdiction is that it was not in fact a family business. He cannot have it both ways," Judge Beck said.
- Marjorie Cook
