Annual Leave and Public Holidays - Frequently Asked Questions

The Christmas Holidays are fast approaching!  Here is a quick guide to frequently asked employment questions around this time of year.

What are employees’ entitlements for public holidays?

If your employee works on a public holiday, they must be paid time and a half.  Further, if the public holiday falls on a day your employee would ordinarily be working, and they do work, that employee is also entitled to a day-in-lieu.

Since our public holidays over the Christmas break this year are either on a Monday or Tuesday, for many they will fall on a day that an employee would otherwise be working.  If this is the case, and the employee is not required to work (e.g. there is a closedown), the employee is entitled to be paid for that day. 

For example, in the recent case Unite Union v Wendco (NZ) Limited, the Employment Relations Authority determined that Wendy’s fast food restaurants are not exempt from paying their employees on Christmas Day.  Wendy’s claimed it was customary for them to close on Christmas Day, therefore it would not be an “otherwise working day” for employees who were rostered on.  The Authority disagreed, stating that if Christmas Day were not a public holiday, Wendy’s would not be closed and employees would be rostered on.  Accordingly, those employees would be entitled to wages for the non-worked public holiday.

Is a casual employee entitled to payment for a non-worked public holiday?

Potentially.  In Unite Union v Wendco (NZ) Limited, the Authority explained that casual employees can be entitled to wages for a non-worked public holiday.  With Christmas Day being on a Monday this year, if a casual employee has been regularly working on Mondays for the weeks preceding, then they will be entitled to wages for the non-worked public holiday.

An employee resigned, and their last day is just before the Christmas break.  Do we still need to pay them public holidays?

If your employee has accrued annual leave to be paid out, then they may be entitled to payment for the public holidays as well.  An employer needs to calculate how many annual leave days will be paid out, and add that to the last day of employment.  An employee must be paid for the public holidays if their annual leave entitlement adds up and takes them through those public holidays - as if they had applied for, and taken, all their leave before their last day of work.

Can an employee refuse to work a public holiday?

An employee does not have to agree to work a public holiday, unless:

• They have agreed to work the public holiday in their employment agreement; or
• The public holiday is on an “otherwise working day” and their employer requires them to work.

Employment law assistance

Our Workplace Law Team are able to assist with all holiday-related employment pātai that you may have prior to the Christmas break.  We are also available to discuss employment processes and any other bespoke employment queries that you may have – festive or not.

Chantelle is a Senior Solicitor in our Workplace Law Team and can be contacted on 07 958 7473.