HOW TO NAVIGATE THE WORK CHRISTMAS PARTY

In comes the festive period and the holiday season, a time for staff to let loose and enjoy their time and work, especially with the office Christmas party, but not too much fun! We’re here with some handy tips to ensure that you don’t prick yourself on mistletoe during the festivities.

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BuckettLaw has Moved Offices!

BuckettLaw has moved into bigger and brighter premises! We are now located at 1/309 Willis Street:

Signage

We’re excited about a fresh new look, in an up and coming part of town and we’re looking forward to working with our clients in a great environment.

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Come in and see us, whether it’s just to say hi or to sort out any range of employment issues.

The team at BuckettLaw look forward to working with you in our new premises!

Suspending Over Public Misconduct

It has recently been in the media that two DJs at George FM were suspended after allegations were raised that they had ‘slut-shamed’ women on their Breakfast Show. While the conduct of the hosts in question is obviously reprehensible it raises an interesting question of how to balance an employee’s rights, the employer’s obligations and the employer’s desire to manage its image through public relations.

It’s not the first time an issue like this has arisen. In July this year two Ministry of Social Development workers were suspended following a racist tirade after being denied entry to a Taupo bar. In August Waikato District Health Board suspended three employees who refused to have flu shots or to wear masks.

Employers are obviously concerned about protecting their reputation when employees’ potential misconduct becomes public knowledge. However, whilst a public statement strongly condemning an employee’s actions and stating they have been suspended sounds good from a PR perspective, it raises serious issues with rights to fair process from an employment relations perspective.

Suspensions are not to be taken lightly. It should not be the employer’s first instinct to suspend an employee, the presumption should be in favour of the right to work. As a brief summary, the law relating to suspensions is as follows:

  • The suspension should not be punitive.
  • In all but unusual circumstances there must be a contractual provision relating to suspension.
  • The principles of natural justice must be followed, the employee must be given an opportunity to respond to the proposal and feedback must be taken into account.
  • Alternative options to suspension should be considered and put to the employee, such as paid special leave or working from home.
  • If the employee is suspended it should be a paid suspension in all but exceptional circumstances.

Fair process must be followed and the suspension must be justified in the circumstances. By announcing publicly that an employee has been suspended there is potential for significant damage to the employee’s reputation. If the matter is then investigated and the allegations aren’t upheld then the employee would feel justifiably aggrieved, people are likely to apply the adage “where there’s smoke, there’s fire”. By announcing the suspension employers also run the risk of potentially showing signs of predetermining the outcome of an investigation.

The question then becomes, what should an employer do in this situation? The best course of action, if an organisation feels that a public statement is necessary, is to state that it takes the matters seriously and that they are being investigated. Saying any more runs the risk of a claim against the organisation for a personal grievance.

With social media becoming so prominent, news of employee misdeeds and misconduct can spread like wildfire, as two employees of a Christchurch insurance company found out when they were photographed and filmed having an after-hours office romp by patrons at a bar next door. Companies can scramble to protect their image and reputation, but the obligations towards employees and their rights must be carefully balanced when making statements to the media.

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“MONDAYISATION” – WHAT YOU NEED TO KNOW

In 2014 the Holidays Act was amended to allow for the Mondayisation of ANZAC day and Waitangi Day. All around the country Monday to Friday workers rejoiced as they would no longer miss out on a precious day off when public holidays fell on a weekend.

I hate mondays

The issue becomes how it impacts businesses and employees.

Trading Restrictions

Trading restrictions apply on the day the day the holiday falls. This means that for this year shops that are not exempt must be closed before 1pm on ANZAC day. No trading restrictions apply on Monday 27 April.

If The Employee Normally Works Saturdays

If the Employee normally works Saturdays, but you do not require them to attend work then you must pay them their normal day’s pay.

If the Employee normally works Saturdays and you remain open then you must pay them time and a half for the hours they work, as well as a day in lieu to be taken at a later date to be agreed upon between the parties.

If The Employee Normally Works Mondays, But Not Weekends

If the Employee does not work weekends then the holiday transfers to the following Monday.

If the Employee normally works Mondays, but you do not require them to attend work then you must pay them their normal day’s pay.

If the Employee normally works Mondays and you remain open then you must pay them time and a half for the hours they work, as well as a day in lieu to be taken at a later date to be agreed upon between the parties.

If The Employee Normally Works Saturdays And Mondays

An Employee is not entitled to “double-dip” on the public holiday. They only get the entitlement once. Therefore if the Employee works Saturdays the holiday is treated as falling on that day and the rules above apply. Monday becomes a normal day for them.

If you require further advice on this contact BuckettLaw and we’ll be happy to assist you with making sure you get it right and everyone is getting the right entitlements.

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Sexual Harassment – Health and Safety in the Workplace

SEXUAL HARASSMENT is illegal. It is an employer’s responsibility to ensure that employees have a healthy and safe work environment. A friendly touch to one person could be an unwanted advance to another. A hilarious joke could make a co-worker feel uncomfortable. Sexual harassment in the workplace is a huge issue all over the world. It is something that both employers and employees need to be aware of, both for the protection of themselves and others. It is important to take steps to prevent sexual harassment from occurring, but also to react appropriately to incidents of sexual harassment.

David Brent

Sexual harassment is unlawful when it occurs in employment under section 62 of the Human Rights Act 2003 and is also grounds for a personal grievance under section 108 of the Employment Relations Act 2000.

Sexual harassment is unwanted behaviour of a sexual nature, it can include, but is not limited to:

  • Requests for sexual contact with an implied or overt promise of preferential treatment or threat of detrimental treatment if the request is refused.
  • Behaviour of a sexual nature that is unwelcome or offensive, which has a detrimental effect on an employee.
  • Sexual jokes.
  • Comments about another person’s sexual activities.
  • Touching or grabbing someone.

As an employee it is important to know when your conduct may be perceived by someone else as sexual harassment, even if it doesn’t seem that way to you. If you are the victim of sexual harassment it is important to keep records of incidents that offend you. Talk the situation over with someone you trust. You may confront the person who is harassing you, though it is understandable if you might feel uncomfortable doing this. Report the sexual harassment to a superior or human resources. If it is not resolved you have the right to contact a lawyer, the Department of Labour, or possibly the Employment Relations Authority for further assistance. There are many remedies available.

As an employer it is important that you foster a healthy working environment. Sexual harassment can come from fellow employees or customers. All allegations of sexual harassment must be taken seriously and investigated. Steps must be taken to prevent it from happening again. Not all sexual harassment will be reported so it is important to keep vigilant in order to prevent liability and make your business a safe and enjoyable place to work. Make all employees aware of the sexual harassment policies and create welcoming channels for reporting.

The Courts have taken a very hard line when it comes to sexual harassment, Chief Judge Goddard in Z v Y Ltd and A observed that:

“…sexual harassment poisons the atmosphere in the workplace. It is wholly unacceptable and entirely devoid of any redeeming features. It follows that its occurrence can never be met with matters of justification, excuse, or mitigation. It is an attack on the basic human right that all persons must be supposed to have to pursue their economic well-being in conditions of freedom and dignity.”

The Court of Appeal in Smith v Christchurch Press Company Ltd held that the conduct at issue doesn’t have to occur in the workplace:

“It is not so much a question of where the conduct occurs but rather its impact or potential impact on the employer’s business, whether that is because the business may be damaged in some way; because the conduct is incompatible with the proper discharge of the employee’s duties; because it impacts upon the employer’s obligations to other employees or for any other reason it undermines the trust and confidence necessary between employer and employee.”

Mr Smith was held to have been justifiably dismissed after a complaint from a co-worker about an incident at Mr Smith’s house where the two went for lunch.

The way an employer reacts to incidents of sexual harassment is extremely important, both for fostering productive employment relationships and for preventing liability. In Adkins v Turk’s Poultry Farm Ltd an employee had complained of sexual harassment and had reported it to her superiors. The employers raised concerns with the employee accused of sexual harassment and took some steps to separate the man from the complainant; however, they never told the complainant of the outcome of her complaint. Unbeknownst to the employer the harassment continued. The complainant, thinking her complaint had been ignored, suffered in silence. The complainant eventually resigned due to the continued harassment. The employer was found to be liable for constructive dismissal, due to the fact that they had not informed her of steps they were taking to fix the situation and stop the harassment.

Due to the sensitive nature of sexual harassment it is often not smartest course of action to deal with complaints internally. The people investigating may be too close to the parties involved and may find it difficult to act impartially and thus within the law. This is where it would be best to have a third party act for the business. As they are sufficiently removed from everyone involved they can act fairly and ensure that the necessary procedures are followed. This safeguards the business from flawed procedure and decision making and ensures that employees can have confidence in the systems in place.

It is essential that you have in place:

  • A system for educating your staff on sexual harassment;
  • Policies and procedures in place for the prevention and reporting of sexual harassment; and
  • Systems in place to appropriately address incidents of sexual harassment.

BuckettLaw is always available for advice in these situations and has the systems in place to thoroughly investigate issues in your workplace.

Employment Relations Act Changes 2015

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Employment Relations Act Changes 2015

Practical Consequences of Changes

  • The changes come into force on 6 March 2015.
  • Contracts must be renegotiated for the new rest and meal break rules to take effect.
  • Workplace polices may need to be updated to take into account changes to the good faith obligation. The obligation itself has not changed, but there are new requirements to provide information.
  • On 1 April 2015 the minimum wage increases to $14.75 per hour.

Flexible working arrangements

  • Any employee may now request a flexible working arrangement. Previously, only an employee who ‘has the care of any person’ could.
  • An employee can make a request at any time. Previously, 6 months employment was required beforehand.
  • An employee may now make an unlimited number of requests per year. Previously, there was a statutory limit.
  • Employers must now respond to requests within 1 month, and must respond in writing and include an explanation of any refusal of the request.

Rest and meal breaks

  • The Act no longer specifies set breaks for given hours of work. An employer must instead provide breaks that:
  • provide the employee reasonable opportunity for rest, refreshment, and attention to personal matters; and
  • are appropriate for the duration of the employee’s work period.
  • An employer may restrict rest breaks and meal breaks (for example, requiring the employee to perform work duties during the break). However, only if:
  • It is reasonable and necessary with regard to the nature of the work, or;
  • It is reasonable and agreed to by the employee and employer (this does not have to be in the employment agreement).
  • The employee must be in the workplace, performing work duties, aware of work duties, or expecting interruption.
  • An employee may now agree not to have breaks.
  • An employer may refuse to provide breaks if it cannot reasonably provide them.
  • Compensation must be paid where no breaks are to be taken.
  • Compensation must be reasonable: for example, by providing equivalent time off at another time, or payment of a similar value as the break.
  • An employer cannot contract out of the obligation to provide reasonable compensation. Any attempt to do so will invalidate the agreement not to take breaks.
  • Discussions over rest and meal breaks should be made in good faith.
  • Existing meal and rest break provisions will continue in effect, unless a change is agreed in an individual or collective agreement.

Continuity of employment – Part 6A of the Employment Relations Act

  • The class of ‘associated persons’ has been narrowed, to make it easier for businesses to qualify as a small and medium enterprise.
  • Time frames have been set for employees transferring under Part 6A.
  • Employers must provide detailed information to the new employer on employees who are transferring under Part 6A.
  • There is now a scheme for apportioning service-related entitlements of the transferring employee.
  • The old employer cannot change the work affected by the restructuring, or the terms and conditions of the employee’s employment.
  • More information can be found at: http://www.dol.govt.nz/er/services/law/legislationreviews/04-continuity.asp

Good Faith

  • If an employer is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of an employee’s employment, then relevant information must be provided.
  • Confidential information does not need to be provided if it would be an unwarranted disclosure of the affairs of another employee, or if it legally must stay confidential, or if there is good reason to keep the information confidential. Otherwise, the employee is entitled to know confidential information about themselves.
  • Obligations under the Official Information Act 1982 and Privacy Act 1993 still apply.
  • Employees should know the identity of their accuser or the nature of any allegations made against them unless there is good reason for that information to be kept confidential.

Collective bargaining

  • Parties are no longer required by good faith to come to an agreement. Application can be made to the ERA to declare that bargaining has ended.
  • Employers may now opt out of multi-employer bargaining from the start.
  • Non-union employees no longer gain the benefit of collective agreements for 30 days.
  • Proportionate pay reductions may be made as a response to partial strikes.
  • Advance written notice must be given for proposed strikes and lockouts in all sectors.

Employment Relations Authority

  • At an investigation meeting’s conclusion, the Authority must give an oral determination within 1 month (with a written record of that determination)
  • Or the Authority must give an oral indication of its preliminary findings (unless extra evidence is provided) and deliver a written determination within 3 months of the investigation meeting or whenever extra evidence is provided, whichever is later.
  • The Authority can only reserve its determination if there are good reasons why it is not practical – a reserved determination must be delivered within 3 months of either the investigation meeting or any extra evidence being provided, whichever is later.
  • Sometimes matters may be decided without an investigation meeting. Determination must be given within 3 months.

For further information on how to implement these changes contact Buckettlaw:

Phone: 04 472 8600
reception@buckettlaw.co.nz
http://www.bucketlaw.co.nz

Level 6
166 Featherston Street
PO Box 5062
Wellington 6145

What 2015 Holds for Employment Law

A big welcome to 2015 from the BuckettLaw team!

2015

2014 moves into the rear view mirror we look forward to what promises to be a big and exciting year for employment law in New Zealand, both for employers and employees.

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Planning a Family? Your guide to parental leave.

There are approximately 173 babies born each day in New Zealand. That’s over 63,000 NZ mums, and 63,000 NZ dads welcoming a wee tot into their family each year. With new promises being made around paid parental leave, we thought it important to remind parents-to-be of their entitlements under the current and future laws, and to inform employers of their obligations.

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What the Election Results Mean for You

Over the weekend we had the New Zealand General Election, the National Party was once again the winner on the night, and with a surprising percentage of the party votes will now enter their third term in Government. The big question for us, and you, is what this result means for employers and employees. National are looking like a sure thing to hold a majority in parliament and can govern on their own without the need for minority coalition partners, this means that they will be able to pass the Employment Relations Act Amendments put forward by Simon Bridges without any opposition.

The biggest and most controversial changes to the Act come in the form of Collective Bargaining reform. This is where the Bill faced the most opposition at Select Committee. Sweeping changes come in the form of employers being able to opt out of collective bargaining if a stalemate is reached, the 30 Day Rule, whereby new employees are given the conditions of the collective for the first month is repealed and employers now have the ability to opt out of multi-employer collective agreements. You may not like these new provisions, but put down the signs, the megaphones and back away from the picket line, employers will now have the ability to decrease employees’ pay in response to partial strikes.

A main policy of the amendments is to increase flexibility in working arrangements for both employers and employees. These are implemented in the form of restructures to the provisions around rest and meal breaks, and employees’ abilities to request flexible working arrangements. Any employee may request changes to their working arrangements, including their hours, days or place of work. Previously this was limited to people who had another person in their care. This doesn’t mean you can start working from home in your PJs though! Employers have one month to consider the request and respond and may decline the request under certain circumstances, including quality decreasing, performance suffering, if it will cost them more, or the additional workload won’t be able to be spread among the current staff.

Workers will not rejoice over the new rest and meal break policies, instead of prescribed times the Act will move to a standard of reasonableness, and if an employer can’t reasonably provide breaks then the employer must provide them with compensation. These new standards are interesting as they are not defined and will likely to be tested in the Courts, though it does at a glance seem like an erosion of employee rights.

These changes may not be popular with all, but they will be passed into law soon enough with the result of the election. If you have any questions about how they will impact you as an employer or your rights as an employee, contact BuckettLaw, the employment law experts.

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Beware of belittling

We discussed bullying in an article not so long ago, and workplaces continue to be fraught with bullies and their victims. Thus, we continue our quest to help employers and employees recognise bullying behaviour and deal with it appropriately.

Bullying behaviour may not be instantly recognisable, or you may not be able to point to one particular incident of bullying. Often bullying comprises of an accumulation of many small incidents over a long period of time. Many people do not realise that the unfavourable behaviour directed towards them is “bullying” behaviour. Victims may not want to report the behaviour for fear of not being taken seriously, or being told to “harden up”. Employers may see a victim as being overly sensitive rather than genuinely investigating their concerns. If bullying behaviour is not dealt with appropriately it can have detrimental effects on both the employer and the victim(s). Bullying is not something to be tossed aside and ignored.

Bullying behaviour includes (but is not limited to): 

  • using fowl or offensive language
  • nitpicking, fault-finding or trivial criticism
  • making threats
  • sarcasm, hostility or rudeness
  • interrupting
  • belittling
  • providing instructions without reasonable explanation
  • setting unreasonable goals or deadlines
  • refusing reasonable requests without justification
  • excessive scrutiny
  • refusal to acknowledge contributions or achievements
  • attempts to undermine value and worth
  • isolating, treating differently
  • denying training necessary to fulfil duties
  • initiating disciplinary procedures for trivial reasons

A notable decision of the Supreme Court of Victoria, Australia is an excellent example of the importance of addressing bullying behaviour appropriately. In Swan v Monash Law Book Cooperative [2013] VSC 326 the employer was ordered to pay a total of just under $600,000 in damages to an employee who had been bullied over a 5 year period. It was found that the employer:

  • failed to properly define relations and expectations concerning workplace conduct;
  • failed to appropriately train employees to deal appropriately with bullying behaviour and complaints;
  • failed to consider appropriate measures to address inappropriate conduct, and a failure to inform the bully that his behaviour was inappropriate;
  • failed to intervene and investigate complaints within a timely manner when complaints were first raised;
  • failed to have a formal structure or complaints mechanism in place for employees to seek assistance when bullying occurred;
  • failed to monitor the situation;
  • failed to have a safe return to work strategy.

The Supreme Court’s decision demonstrates the onerous obligations on employers to ensure a safe and healthy workplace, and the high risks employer face if they do not comply. It is not enough to simply change a victims’ reporting lines, or transfer a bully from one team to another. Bullying can often occur because of a workplace’s culture or lack of policies and procedures addressing suitable and acceptable behaviour. Not only do these policies have to exist, but they need to be implemented appropriately and efficiently.

While New Zealand is slightly lagging behind Australia in relation to health and safety laws, and certainly in terms of compensatory awards in bullying cases, WorkSafe NZ’s bullying guidelines released in February indicate we are following in Australia’s footsteps in recognising the importance of cracking down on bullying behaviour. It is vital that employers have appropriate measures in place to deal with bullies and victims.

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