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
