A long-serving Bay of Plenty surgeon who missed out on a retirement payment and took his boss to court has won nearly 40 days' worth of pay.

Dr Timothy Mathews worked for the Bay of Plenty District Health Board as an ear, nose and throat surgeon for 26 years. When he retired at the end of 2013, he was looking forward to a gratuity to reflect his long service. However, he did not receive this.

In an Employment Court of New Zealand judgment, the DHB stated that because Mathews continued to work afterwards in a private practice, he should have been regarded as having resigned rather than retired. This would have meant he had no entitlement to a retirement payment of any kind.

In April 1987, Mathews emigrated from South Africa to work at the Rotorua Hospital as a part-time ear, nose and throat surgeon and also began a private practice to make up his hours to full-time.

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At the time, Rotorua Hospital was part of the Waikato Hospital Board but this changed from July 1, 1989, the Rotorua, Tauranga and Whakatane Hospitals were constituted as the Bay of Plenty Area Health Board.

In November 2013, Mathews wrote to the DHB, giving notice of his retirement and asking for a copy of the DHB's gratuity policy, believing he was entitled to a gratuity payment on retirement.

In January 2014, the DHB chief executive confirmed an ex gratia payment of $2000 would be paid in recognition of Mathews' service and contribution. But it was stated that such payments were the exception rather than the rule.

Despite this, the employment court found the DHB still treated Mathews' departure as a retirement so it should have paid the gratuity as part of this.

In the ruling, Judge B A Corkill found Mathews did retire from the DHB and should be paid, in accordance to his agreement at the time, a total of 39.2 days' pay.