ERA finds Wendy’s failed to pay workers for public holidays

Wendy's has failed to pay workers for public holidays, the ERA found yesterday. Photo / NZME

A fast food retailer failed to pay staff for working public holidays, the Employment Relations Authority (ERA) found yesterday.

The company is run by West Auckland’s Lendich family and has the exclusive licence to operate American burger chain Wendy’s Hamburgers in New Zealand.

ERA member Rachel Larmer said in a report yesterday that Wendco breached collective agreement clauses including the “Mondayisation” of public holidays on December 26, 2020 and January 2, 2021 and failing to pay some workers an average daily pay for unworked public holidays.

Wendco admitted that it failed to pay five employees for “an alternative holiday they were entitled to”, however Larmer said the case needed further investigation.

“The total number of breaches has not yet been determined, as it is unclear whether the ‘Mondayisation’ issues were limited to five affected employees or involved more than that,” Larmer said.

Wendco was also found to have breached another clause in the collective agreement because it failed to pay a number of affected members for a public holiday not worked they were entitled to. The total number of breaches for this was yet to be determined and is subject to further investigation.

Trade union Unite said 33 union members working for Wendco had not received public holiday entitlements between Christmas 2020 and New Year 2021.

Unite advocate Mike Treen said the group looked at the wage and time records for the holiday period between 2020 and 2021.

“We discovered that almost no one got paid for not working the public holiday no matter how obvious it was that it was ‘an otherwise working day’ for them,” Treen said.

Wendco said that because it always closed its restaurants on Christmas Day, 25 December 2020 would not otherwise have been a working day for any of the affected employees.

Wendco operated 22 fast-service restaurants in New Zealand as of 2022 and has about 450 employees.

Between 2020 and 2021 Work and Income records show the company took over $3.37m in Covid-19 wage subsidies.

Chief executive Danielle Lendich and her parents are shareholders and directors of Lendich Group and directors at Wendco.

In 2017, Wendco disputed* an improvement notice lodged by a Labour Inspector served on the company in October 2015.

In that case the ERA determined Wendco failed to comply with S56 of the Holidays Act 2003 because it had not provided all employees with an alternative holiday when they worked on a public holiday that would otherwise be a working day.

It was also found to have failed to comply with S60 of the act because it had not paid all employees for any alternative holidays they became entitled to during their employment but had not taken when their employment ended.

Wendco was told to conduct a review of all public holidays worked by past and current employees since July 2012 and credit each employee with an alternative holiday if the public holiday was found to be otherwise a working day for that employee.

For former employees Wendco was told to make a payment for the alternative day.

*An earlier version of this story incorrectly said Wendco was prosecuted.