KEY POINTS:
Can you tell me what days off I should get each year for when I'm sick? I started work for my company 18 months ago. My contract says I get five days special leave per year. It says I don't start getting this leave until I've been at work for six months. Since I started work I've taken a total of seven days off when I was sick. My boss says I've taken too much but I thought I could take five days for my first year at work and then I got another five when I started my second year, so I should still have three days left I can use over the next six months. Is this right?
Working out your leave entitlements isn't always easy. Sick leave entitlement dates can be confusing because they don't always coincide with the date you become entitled to annual leave (your annual leave anniversary date). Your employer should explain your leave entitlements to you when you start work (usually in your employment agreement). It sounds like your employment agreement has some old wording in it from the previous holidays legislation in New Zealand. But your employer is right that you seem to have exceeded your sick leave.
It is important to get leave entitlements right. Getting them wrong can be expensive for employers. For some breaches of the holidays legislation, employers can be ordered to pay a penalty of up to $10,000. If employers have underpaid holiday pay, they may have to pay interest on the unpaid holidays for some or all of the period the unpaid holidays applied to. For example, an employer might have been getting its calculations wrong for, say, five years. If it had been paying its employees for one less day annual leave per year than they were entitled to and it had 20 employees, paying each employee five days of salary plus five years of interest could be expensive. So what are the minimum sick leave entitlements? The Holidays Act 2003 says that after six months continuous employment with the same employer, an employee is entitled to five days sick leave for each subsequent year of service.
This means that once you had been with your employer for six months, you became entitled to five days sick leave for the following 12 months of employment. In other words, five days sick leave for the period starting at the completion of six months employment and ending when you have completed 18 months of employment.
At the end of that 18-month period, you become entitled to another five days for the subsequent 12-month period. If you have already taken seven days sick leave and have only been with your employer for 18 months, your employer is right that you have exceeded your entitlement.
So far you have only become entitled to five days sick leave. You will be entitled to another five days for the period from 18 months employment to 30 months' employment.
As a solution, you and your employer could agree to you taking sick leave in advance. Also, your employer is obliged to keep a leave record for you and you are entitled to see it. So if you are ever unsure how much leave you have available, you can request to see your leave record.
As to the wording in your employment agreement, you said it refers to special leave. There is no such thing as special leave under the Holidays Act 2003 - special leave was an entitlement under the old Holidays Act 1981. Under the Holidays Act 2003 employees have separate entitlements to at least five days sick leave and three days bereavement leave for each year of employment subsequent to the first six months. There is also a potential entitlement to a further day's bereavement leave.
I suggest you approach your employer about the wording in your employment agreement and ask for up-to-date wording that provides an easily understandable explanation of your entitlements. This could prevent any confusion about your entitlements in the future.
