Monthly Archives: May 2012

An iPhone App A Day Keeps The Slackers Away…

As winter rolls around and those unexpected sunny autumn days become few and far between, it becomes increasingly tempting to pull up the duvet, press snooze on the alarm clock and hunker down. We are entering the season of “sickies”, where a cup of tea and a movie seems the obvious choice rather than a battle with the wind, rain and monochrome suited stampede on Lambton Quay.

TESSA KATE HOGG 23/05/2012

But how do you break it to your boss.. A call? A text? An email? An unexplained outbreak of chickenpox (no, you never had it as a child)? Surely bosses have heard every excuse in the book, surely they will see right through your Oscar winning worthy croaky voice.  Employers beware, there is a new smart phone app on the scene and it has got sick days sussed.

Skiver” helps you pull ‘the perfect sickie’. It asks you to select the number of days you want off then suggests possible illnesses as well as a list of symptoms just in case you are pressed for more information by a suspicious boss. This cheeky app will even provide an email or text template to send to your boss.  Don’t worry about wasting the day, skiver will hook into google maps and provide suggestions of hi-jinks you can get up to in your area on your day off. Now it has never been easier for employees to throw a plausible sickie, or harder for employers to detect it.

While it’s not yet available in New Zealand, there are plenty of imitation apps out there and whether or not employees are using smart phone apps to get the day off they are certainly taking days off in droves.

So while skiver takes the work out of getting out of work, what is an employer to do?

For the tech-savvy, prepared to battle app-on-app ‘Employee tracker’ can note down attendance and reasons for leave, but a more realistic approach, where dishonesty is discouraged and the workplace isn’t such a dreaded place to be, is the best course of action.

DO

  • Find imaginative ways that encourage high attendance, a fun and stimulating workplace will boost team morale and motivation.
  • Try to create an open and supportive culture, be flexible, a bit of give and take goes a long way.
  • Be as clear as possible in your policies and contracts- Include written procedures in employment agreements outlining employee’s rights, the sick leave process and how it is monitored.
  • Make sure employees know who they have to inform and how they have to do it. A personal phone call, rather than a text or email, is best to sort the sick from the skiving.
  • Apply these procedures consistently so everyone knows where they stand
  • You can ask your employee for a medical certificate as proof of illness or injury, if they have been away less than 3 days you will have to meet the cost of them getting this, if more than 3 consecutive days the employee must foot the bill.

DON’T

  • Accuse an employee of pulling a sickie without evidence and a full and fair investigation, you may leave yourself open to personal grievance claims of unfair discrimination or unfair dismissal.
  • Make people feel guilty about genuine illness, this will only lower morale across the board and is more likely to increase skiving in the long run.

At the end of the day it is simple, create a work environment that’s more appealing than a cheeky day off ‘sick’. If an employee looks out to grey skies and resists the temptation to press snooze on the alarm clock for a day in the office, you have been successful.

And Potential skivers beware the rookie error made by Australian Kyle Doyle, who pulled a sickie and then updated his facebook “Not going to work, still trashed, sickie woooo”.

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NINETY DAY TRIAL PERIODS IN A NUTSHELL

A BREAKDOWN ON THE LAW AND HOW IT APPLIES TO YOU

The logistics and legal jargon of 90 day trial periods may seem a bit of a maze but here we break down the definitions, key features and a simple checklist to guide you through. 

As of April the 1st 2011 all new employees are subject to a 90 day trial period. This allows an employer to terminate a new employment within the first 90 days without reason and without risk. However, in order to successfully use the legislation the trial periods must be in writing, agreed to in good faith and recorded at the start of the agreement. It is important that both employers and employees know how trial periods work, which not as simple as it first appears.

Basically Trial periods involve a trade off; on one hand the employee’s right to challenge unfair dismissal on the other an employer’s freedom in drafting the terms of their employment agreements.

The law is set out in s67A and B of the act. Its limits are currently being thrashed out in the courtroom in a series of cases: Smith v Stokes, Parkes v Squires Manufacturing Ltd, Blackmore v Honnick Properties Ltd. In all cases the courts are making it loud and clear that if the law isn’t followed to the letter employers cannot rely on this legislation.

WHAT IS A TRIAL PROVISION ?

A trial provision is a clause in an employment agreement which provides for a trial period (ninety days or less) commencing at the beginning of the employees employment.

AN EMPLOYEE

= an employee that has NOT previously been employed by that employer

WHAT’S IN A NAME ?

Not much… as long as the description of the period and its features are accurate. In court both a “probationary period” and a “3 month trial period” has been held to be the same this as a “trial period” IF described in terms that clearly refers to the law of 90day trial periods.

TIP To avoid confusion though we advise you describe the provision in your contracts in the same terms as it is in the act, a “trial period” not exceeding 90 days.

 

COVERING YOUR BASES CHECKLIST

  1. Make sure the employee hasn’t been previously employed by the employer. (Particularly if purchasing a business with existing employees)
  2. Ensure the trial period provision is included IN WRITING in the employee’s employment agreement.
  3. This provision must state
  • For a specified period (no more than 90 days) starting at the beginning of the employees employment the employee is to serve a trial period
  • In this period the employer can dismiss the employee
  • If dismissed the employee cannot bring a Personal grievance or other legal proceedings
  1. Before the employee starts the employer MUST make sure employee…
  •  Receives a copy of the employment agreement including the written Trial Period clause
  •  Is aware of this Trial Period in the Agreement
  •  Has the opportunity to take advice
  •  Has signed the Employment Agreement
  1. An employer cannot treat an employee differently from employees without a Trial period provision
  2. An employer must act at all times in GOOD FAITH

KEY FEATURES THAT MUST BE REFERRED TO ARE…

 

THE POSSIBILITY OF DISMISSAL AND NON-ENTITLEMENT TO BRING A PERSONAL GRIEVANCE 

  • The provision will not work unless it clearly states that the employer can dismiss the employee in the first 90 days AND that there will be a non-entitlement to bring a personal grievance in those ninety days.
  • If the provision does not mention the above it is classified as a “probationary agreement” and the law relating to unjustified dismissal applies.

TIP  If you want the protection of a ninety day period you must state these elements, if not you may find yourself in hot water.

TIMING OF WRITTEN AGREEMENT

  • In Blackmore v Honnick, a previously unmentioned trial provision was inserted into the written agreement of person who had earlier been VERBALLY offered and had accepted work as an employee. The court held he was an employee already (even though he had only been employed on the basis of a verbal contract for only one hour).

TIP  Timing is crucial; the provision must be in the contract and acknowledged BEFORE the person is employed.

WHEN DOES THE NINETY DAYS START?

  • The ninety days doesn’t have to start when the agreement is signed. It can start on the day work starts if outlined in the Trial Period description as such. In such a case an employee could still bring a Personal grievance if the employer withdraws offer of employment before they start work.

TIP Be clear as to when the period starts, if you want it to start on the day the contract is signed you must say so.

STRICT INTERPRETATION

  • The court made it clear that trial periods require STRICT INTERPRETATION given that they effectively give significant advantages to an employer by removing the employer’s right to challenge unfair dismissal.
  • The courts have specifically referred to the series of steps that employers must go through in order to create a watertight 90 day trial period and the risk that is faced in trying to rely on the legislation if they didn’t follow the steps. We have turned these into a 6 point checklist for you.

TIP Cover your bases, follow the steps, check the list.

 WHAT IS GOOD FAITH??

  • Good faith is about fairness and equality; it has been referred to over and over in the courts as an important obligation that remains upon employers. It is crucial that the bargaining process is fair; an employer needs to give actual opportunity for the employee to go away and get advice. If there is pressure to sign a contract immediately this opportunity has not been given.

TIP  Do not rush the process, if you are an employer allow potential employees time to mull over the contract and seek advice. If you are the potential employee take this opportunity!

 

 


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HANG-ON, NOT HANGOVER

BIG NIGHT OUT, WORK THE NEXT DAY, WHO SHOULD PAY?

We were surprised at Buckett Law by the recent suggestion that there would be an overabundance of employees prepared to take hung-over days as ‘sick days’ under the Holidays Act 2003 and that this would be accepted readily by employers.

Realistically, people come to work to do a job; however there will be an occasion where due to overindulgence their performance may be impaired and it may be difficult to get that work done. There may even be situations where this is dangerous. It really is a question of where the buck stops and abuse of process should not be something that the law endorses.

The oxford dictionary defines illness as “a disease or period of sickness affecting the body or mind” and defines a hangover as “a severe headache or other after-effects caused by drinking an excess of alcohol.” The issue of cause is an important one, particularly as the court of appeal has omitted to define sickness.

Looking to the purpose of the Act, to promote balance between work and other aspects of employees’ lives and, to that end, to provide employees with minimum entitlements to leave when an employee is unable to attend work because they are sick or injured, does not show an easy compatibility with the regular taking of sick leave which has been brought on ones self.  Poisoning, in effect. The salience of the cause of sickness  is supported by the fact that lying to ones boss, ie claiming the flu when in fact hung-over, is grounds for misconduct.

“All is certainly not lost; this type of behaviour can be dealt with directly through the performance review process as a performance matter”

Nonetheless, if tight policies are not within the contract, ie defining coming to work under the influence of alcohol as grounds for serious misconduct, it is difficult to categorise it as such. All is certainly not lost; this type of behaviour can be dealt with directly through the performance review process as a performance matter, either as a issue of consistently coming to work impaired or as an abuse of the sick leave process.

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