The Employment Relations Authority has decided that an employee who changed to become a contractor was not entitled to paid parental leave.  To be entitled to paid leave an employee must work for at least 10 hours a week on 26 of the preceding 52 weeks.  The employee had only worked as an employee for 24 weeks in the preceding 26 weeks.  She then resigned and took up work in a similar nature with another employer, but as a contractor, so she was self-employed. 

To be eligible for paid parental leave as a self-employed person the employer must be working as a self-employed person at least 10 hours a week for 26 of the preceding 52 weeks.

She only worked as a contractor for 19 weeks and she had already worked for 24 weeks as an employee.  The ERA held that there was no provision in the Parental Leave and Employment Protection Act to combine periods of employment and self-employment to qualify under the Act.  You must qualify under one or the other and cannot combine periods of employment and self-employment to get over the 26 weeks threshold. 

Luckily for the person in this case the IRD had incorrectly advised her that she would qualify for the paid leave and then MBIE sought to change that and hold that she was not entitled to the leave.  The ERA decided that, as she had been incorrectly told she was entitled to the leave and her husband had resigned from his job to look after the child, MBIE could not reverse the decision made by IRD which had been communicated to the applicant.  It is a fortunate outcome for her, as if that mistake had not been made by IRD, she would not have been entitled to the paid parental leave despite working for 43 of the preceding 52 weeks.

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Alan Knowsley