Top tip for 2014 – Follow your employment agreements!

Well it’s only the first week back from the Christmas break, and while many people are still on leave, we’re already getting busy with a variety of employment relations issues… Not a great way to start the year, but here’s our top tip to get you through a trouble-free 2014: Read and abide by the terms and conditions contained in your employment agreements It sounds simple enough, but you’d be surprised how many people... Read More

Recent case: Employee fined $50,000 for breaching restraint of trade

A penalty of $50,000 payable to the employer has been imposed on an employee who breached his employment agreement with the employer at least 263 times. The Employment Relations Authority held that the employee was bound by a reasonable restraint of trade and by confidentiality provisions and had breached them by: copying, removing and using the employer’s confidential information and intellectual property for his own     benefit using... Read More

Recent case: Time in lieu agreements should be written

Any agreement regarding time in lieu to be taken for working over agreed hours should be written into the employment agreement. The agreement should also make it clear whether the time owed will (or will not) be paid out on the termination of employment. If that is not done an employer may face an unexpected claim on termination of the employee’s employment. In Jackson v TSL Nelson Ltd [2013] NZERA Christchurch 179, Mr Jackson brought... Read More

Recent case: Employment of family members problematic

Employing family members can lead to problems as the case noted below shows. Family members should always be given written employment agreements and be paid at least the minimum wage. In Meroiti v Lindale Lodge Ltd [2013] NZERA Wellington 104, Graeme was employed by his brother John as manager of the Lindale Motor Lodge. The agreement (which appeared to be unwritten) was that Graeme would live in and be paid $350 per week in the hand after tax had... Read More

Making variations to employment agreements

The world doesn’t stand still, it’s constantly moving and so it the environment in which businesses operate.  Hence, it is very common that the circumstances under which you employed someone may change, and you therefore need to make amendments (or variations) to an employment agreement. The problem is, you cannot simply issue new employment agreements containing different terms and conditions to existing employees.  It is unlawful to unilaterally... Read More

Making variations to employment agreements

The world doesn’t stand still, it’s constantly moving and so it the environment in which businesses operate.  Hence, it is very common that the circumstances under which you employed someone may change, and you therefore need to make amendments (or variations) to an employment agreement. The problem is, you cannot simply issue new employment agreements containing different terms and conditions to existing employees.  It is unlawful to... Read More

Unsigned employment agreement binding

Recent case provides reminder that agreement can be inferred from conduct The Employment Relations Act 2000 provides that an intended agreement must not be treated as an employment agreement if the employee has not signed it or “agreed to any of the terms and conditions specified in the intended agreement” (section 64(6)(b)). An employee who argued that he was not bound by the terms of an employment agreement because he had not signed the... Read More

Working from home

Yahoo’s new chief executive might have banned it, and Google might think that working from home or teleworking does not provide the best environment for new ideas to grow and thrive. Yet many organisations allow employees to work from their homes – and for a variety of reasons. An organisation may allow employees to work from home (or some other remote location) in a number of different circumstances. It may be part of an organisation’s... Read More

Working from home

An organisation may allow employees to work from home (or some other remote location) in a number of different circumstances. It may be part of an organisation’s encouragement of work-life balance; or it may be in response to an employee’s request for flexible working arrangements; or it may be temporary because the workplace is inaccessible or unavailable for some reason. We recommend, except where temporary in cases of an emergency,... Read More

What to do if you’ve been dismissed

It’s an awful situation to find yourself in, but it actually happens more often than you may think.  Being sacked, fired, or instantly (summarily) dismissed without notice can be a huge shock to your system, and your finances!  Feeling bewildered and not knowing where to turn or what to do is common.  So, to give you a bit of advice with where to start we’re going to cover off the basics below.  Were you on a trial period? Was your... Read More

HELP I’ve been sacked! Here’s what to do if you get fired

It’s an awful situation to find yourself in, but it actually happens more often than you may think.  Being sacked, fired, or instantly (summarily) dismissed without notice can be a huge shock to your system, and your finances!  Feeling bewildered and not knowing where to turn or what to do is common.  So, to give you a bit of advice with where to start we’ve written an article that covers the basics.  Were you on a trial period? Did... Read More

Recent case: Seasonal workers require fixed term employment agreements

An employer who employs seasonal workers must provide those workers with a fixed term agreement that complies in every respect with the Employment Relations Act 2000, section 66. An employer who has engaged a seasonal employee but has failed to provide for a fixed term and then dismisses the employee at the end of the season without going through a fair and reasonable process will be found liable for unjustifiably dismissing the employee. In Turner... Read More

Variation of terms, “custom and practice” and implied terms of employment

As a general rule, contractual terms cannot be varied without the consent of both of the contracting parties. However, an employer has a right to manage his or her business. The line between the employer’s right to manage, which does not require the consent of an employee, and a variation of contract, which does require the consent of an employee, can be hard to draw. An absence of protest amounts to acceptance of an alteration, and acceptance of... Read More

Variation of terms, “custom and practice” and implied terms of employment

As a general rule, contractual terms cannot be varied without the consent of both of the contracting parties. However, an employer has a right to manage his or her business. The line between the employer’s right to manage, which does not require the consent of an employee, and a variation of contract, which does require the consent of an employee, can be hard to draw. An absence of protest amounts to acceptance of an alteration, and acceptance of... Read More

Q & A: Can existing employment agreements be assigned to new employer?

Situation: A partnership of Mr & Mrs A employs several staff. The staff are on-hired to the family company (which is owned by Mr & Mrs A and their sons). Mr & Mrs A are retiring due to ill health, and wish to dissolve their partnership. For various reasons, it is undesirable for the company to employ staff directly. The two sons will start a new partnership and employ the staff through this partnership. There will be no change to any HR... Read More

RESTRUCTURING, CONSULTATION AND GOOD FAITH

Employment Protection Provision In accordance with Section 69OI(1) of the Employment Relations Act 2000 (the “Act”), an employee protection provision means a provision— (a) the purpose of which is to provide protection for the employment of employees affected by a restructuring;     and (b) that includes— (i) a process that the employer must follow in negotiating with a new employer about the restructuring to the     extent that it... Read More

Part Time and Casual Employees

There is no legal definition of part-time and casual employees. Generally speaking, part-time workers are employed on a permanent basis for less than the ordinary number of hours per week. Part-timers may, for example, work for a few hours a day or for a few days a week on an ongoing basis. Part-time workers have all the rights and entitlements of full-time workers. A casual employee is an employee who is hired for short periods of time usually... Read More

Holiday pay for casual employees

There is no statutory definition of casual employee.  Case law establishes that a casual employee is an employee who is hired for short periods of time usually to do specific work.  Such a worker has no regular work pattern or any expectation of ongoing employment.  The employment of true casual workers terminates at the end of each engagement. On determining the nature of the relationship, the dominant enquiry is not what the parties call the... Read More

Holiday pay for casual employees

There is no statutory definition of casual employee.  Case law establishes that a casual employee is an employee who is hired for short periods of time usually to do specific work.  Such a worker has no regular work pattern or any expectation of ongoing employment.  The employment of true casual workers terminates at the end of each engagement. It is possible for a worker who is initially employed as a casual to drift into the status of permanent... Read More

Employee versus contractor

Whether a person is acting as an employee or an independent contractor depends on the contract and the way the relationship is run.  The provisions of the contract entered into by the parties and the real nature of the relationship are central to the issue of determining the appropriate status of the worker. If you are going to engage a contractor, make sure the worker understands that they do not have the same rights as an employee.  You may suggest... Read More

Employee versus contractor

In deciding whether a person is an employee or an independent contractor the courts will look to determine the “real nature” of the relationship.  They will look to see if the employer exerted control over the worker, where, when and how the worker worked, whether the worker could profit from his own efforts, and whether the worker was an integral part of the business. If in fact the contractor is treated like an employee (the matters... Read More

Absenteeism

In the current climate of Rugby World Cup fever and crises caused by natural disasters such as earthquakes, snow and hail, floods and similar, no doubt your organisation is being affected by absenteeism, whether by employee choice or not.   Rugby World Cup Sure, we’d all like to have game day off, but the reality of that is obvious.  Your business would suffer! Many will be put off by the chaos created by game 1, and be tempted by a day on... Read More

August 2011 Newsletter

Need help with restructuring and redundancy? This newsletter provides a basic step by step guide to restructuring. We also outline the importance of providing all relevant information during the restructuring process, following the recent Employment Court decision from the Vice Chancellor of Massey v. Wrigley and Kelly case. There are some important privacy considerations to be aware of when reference checking or when acting as a referee which we... Read More