Legal Project Management Plan & Checklist
Purpose of this Guide: Use this guide when an employee in New Zealand has been underpaid their contractual wages, overtime, or holiday leave entitlements. This plan is designed for legal practitioners and advocates representing employees to recover unpaid arrears and statutory leave pay. It provides a complete workflow from the initial client interview and auditing payroll history through to direct negotiation, mandatory mediation, filing in the Employment Relations Authority, and final enforcement.
Jurisdiction: New Zealand Employment Relations Authority (national registries). This parent plan covers the standard wage and leave recovery pathway. Subsequent director joinder actions or challenges in the Employment Court are covered in the forks below.
The Process at a Glance: The process begins with verifying the client's status as an employee and calculating the six-year statutory limitation date. The practitioner drafts and serves a formal request for historical wages, time, and leave records. Once records are received, the practitioner performs complex Holidays Act calculations to determine average weekly earnings and ordinary weekly pay. The practitioner then files a mediation request and participates in MBIE mediation to attempt a binding settlement. If mediation is unsuccessful, the practitioner files a Statement of Problem and supporting evidence in the Employment Relations Authority, representing the client at a formal Investigation Meeting to obtain a binding determination.
Use this plan when the employer company is in liquidation, receivership, or has been struck off the register, and the employee seeks to recover unpaid wage and holiday pay arrears directly from the directors or involved officers. This guide is used by practitioners to establish personal liability for statutory breaches and secure recovery from personal assets.
Use this plan when a party is dissatisfied with a determination issued by the Employment Relations Authority regarding wage and holiday pay arrears and wishes to challenge that determination de novo in the Employment Court. This guide is used by solicitors to navigate the formal appellate litigation track, file pleadings, and argue the challenge before a Judge.
Key Legislation and Case Law: Employment Relations Act 2000 - s 6 (employee definition); s 130 (wages and time records); s 131 (arrears recovery action); s 135 (statutory penalties); s 142 (controlling third party joinder); s 161 (exclusive jurisdiction). Holidays Act 2003 - s 8 (ordinary weekly pay); s 9 (relevant daily pay); s 9A (average daily pay); s 16 (annual holiday entitlement); s 21 (greater of OWP or AWE calculation rule); s 28 (PAYG restrictions); s 75 (penalties); s 77 (arrears recovery); s 81 (holiday and leave records); s 83 (evidentiary presumption). Minimum Wage Act 1983 - s 11 (minimum wage recovery). Crimes Act 1961 - s 220AA (criminal wage theft). Key cases: [PBO Limited v Da Cruz [2024] NZEmpC 123](https://www.employmentcourt.govt.nz/) on costs daily tariffs and Calderbank uplift principles; [Labour Inspector v Southern Express Limited [2020] NZEmpC 65](https://www.employmentcourt.govt.nz/) confirming control and integration tests for contractor gateway assessments.
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Wage and Holiday Pay Recovery (Applicant) matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for L&E_LITIGATION cases, outlining the standard DISPUTE_LITIGATION process. Utilize these tracking templates to manage your legal cases efficiently.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
Got a question about this plan?
Ask in the practitioner Discord - edge cases, rule changes, and jurisdiction-specific nuances, all in one place.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.
Statutory Test: Section 6 of the Employment Relations Act 2000 mandates that the Authority or Court must determine the real nature of the relationship, looking at all relevant matters. Key case: Labour Inspector v Southern Express Limited [2020] NZEmpC 65 outlines the modern application of the control, integration, and economic reality tests in contractor-employee sham contracting disputes.
Coordinate the collection and review of all financial documentation required for disclosure, including statements, valuations, and supporting schedules as mandated by the rules.
Conduct a thorough review of all filed materials to ensure compliance with court requirements, verify service obligations have been met, and prepare for the next procedural milestone.
Evidentiary Presumption: Section 83 of the Holidays Act 2003 establishes that if the employer fails to comply with record-keeping duties under Section 81, the reviewer or Authority may accept the employee's records as accurate. This is a critical tactical leverage point for claimants when payroll records are missing or unreliable.
Assess the strategic considerations for interim applications, prepare supporting evidence, and draft the necessary documentation for urgent or time-sensitive relief sought.
Trial Period Rule: Under Section 67A of the Employment Relations Act 2000, trial periods (up to 90 days) are only valid for employers who employ fewer than 20 employees at the start of the employment. The employee must sign the agreement containing the clause before starting work, otherwise the trial is invalid.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
Calculation Rules: Section 21 of the Holidays Act 2003 requires payment at the greater of Ordinary Weekly Pay and Average Weekly Earnings. Exclusion under s 8(2) applies only to payments that are genuinely irregular, one-off, or discretionary bonuses. Under-calculating leave by omitting overtime or variable commissions constitutes a statutory breach.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.
PAYG Restrictions: Under Section 28 of the Holidays Act 2003, PAYG is invalid if employment exceeds 12 months. The employee remains entitled to their 4 weeks of annual holidays, exposing the employer to double recovery liability. RDP under Section 9 must include what the employee would have earned, including overtime or regular allowances.