Category Archives: Tips and Tools

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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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.

Image from http://888fulcrum.com/
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2014 – Horse around and be productive

The horse is a showy beast with an unremitting Imagedesire to be challenged, to progress and triumph. 2014 is the year of the horse – a sign of speedy success, a time to shine, to ride to your destination.  Christmas holidays have come and gone, the New Year celebrations can’t carry on, we’ve all had a little too much to drink over the past few weeks and we are back to the confines of the office, still pasty, left to gaze at the sunshine outside and remember the holiday that was… It is easy for the post-holiday blues to set in, leaving us feeling discouraged and disheartened. But tis the year of the horse! We must grab hold of the reins and canter ahead.

8 Tips for Workplace Productivity in the New Year & summer months 

1. Start your year over

Already broken your New Years resolutions? Feeling pessimistic? Simply begin the year again. If you have already slipped back into bad habits, reassess your way of thinking and start again today. If at first you don’t succeed, try, try, and try again. Attitude is key – try bringing your positive holiday energy back into the work place and infect your co-workers with your optimism.

2. Set goals

No matter what stage of your career you have reached, there is always room for improvement. Once again, a positive attitude will assist you in setting achievable goals. Assume success and have confidence that your goals will be reached. Be ambitious, focus on a new project.  Anticipate needs around your workplace and aim to satisfy those needs by using your initiative. Push your boundaries in order to work harder and smarter. To achieve that raise or promotion you shouldn’t have to increase your work hours. By working smarter and more efficiently during work hours you can increase productivity and job satisfaction. Concentrate on one thing at a time, or one thing per day to ensure you stay focused on particular goals.

3. Get physical

The abundance of daylight hours in January leaves no excuse for laziness. Enhance your personal wellbeing by getting physical. Get outside on your breaks and lap up the sunshine. A change in routine will bring positive results. ImageIf you usually exercise in the evening, try an early morning jog, or organise a team of workmates for a game of touch rugby at the park during your lunch break. We all know exercise boosts our energy levels, de-stresses and increases productivity. Make the most of our stunning summer days – get outdoors and get physical.

4. Eat well & hydrate

Peaches, sweet corn, nectarines, cucumber, spinach, apples, plums, apricots, beans, avocados, cherries, limes, melons, raspberries, blueberries, strawberries, beetroot and tomatoes are all in season over the summer months. Eat them! It is so easy to make healthy food choices with an abundance of fruit and veg available. Kick start 2014 with these nutritious options and set a high standard for the rest of the year. Drink water and lots of it. If you are getting bored with plain water, add fresh lime, or invest in a SoadSparkle for the office. Your mind and body will love you for it (as will your boss).

5. Get to work earlier

With the cloudless blue sky luring us outside it is understandable to want to finish work early and head to the beach. Why not see if you can start work earlier and finish up earlier? If this is not possible, get to work bright and early and accomplish all of the important tasks first thing in the morning when you are at your most productive. This way you should, at the very least, not be slogging away in the evenings. You can’t do everything in a day and the sun will rise tomorrow whether or not you have finished your tasks.start-being-more-productive

6. Spring clean

There’s no point in waiting 9 months for your next spring clean: begin 2014 with a workplace makeover. Getting a head start by organising you work space will increase productivity and help reduce stress. A clean and orderly environment will keep you organised and efficient throughout your hectic day. Go through the stacks of paperwork towering in the corners of the room and take time to consider whether you really need to keep that manual from 2007. De-clutter your computer, make folders for documents you will reuse and remove everything else. Make the time to organise, rearrange and tidy now, and save time in the long-run.

7. Improve relationships

Positive workplace relationships are crucial to promote teamwork, morale and productivity. There is no better time to focus on improving relationships and communication than the beginning of a new year. Keep lines of communication open by making yourself available and freely conversing with others. Ask your boss how you can improve. Cooperate with co-workers and make an effort to be an interested observer. Do not assume anything – always ask, “why?” This will encourage others to communicate more effectively while improving interactions and understanding.

8. Be productive outside of work

Keep busy with the outdoor activities New Zealand has to offer over the summer months. Filling your evenings and weekends with social events and keeping a healthy work/life balance is sure to increase your happiness, which should reflect in your work. Embrace networking opportunities and encourage your colleagues to be social. There are free activities offered throughout the country such as the St John’s Bar outdoor cinema in Wellington, Music in Parks and Movies in Parks in Auckland, the Saturday Night Market in Christchurch just to name a few. Get out, horse around and be productive.

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A Rugby Yarn

Q: How do you get a message home to a nation of gun ho kiwis who grew up with a ‘she’ll be right’ attitude to safety?

A: A rugby analogy

So… We fill Eden park right, four times.. For the sake of the story let’s say four Rugby World Cup matches, Thursday, Friday, Saturday, Sunday.  The stadium is full to the brim. Thousands of fans, all there to see the boys in black.

But, during each game, around about the point when the crowd is thinking “Oo that’s a bit close for comfort” and ponders if the ABs can make it through a World Cup without choking, something goes horribly wrong. Panic spreads, mayhem ensues.

At the end of the weekend 100 people are dead, 25,000 have been hurt severely enough to be off work at least a week,  370 have been admitted to hospital and diagnosed with a life threatening condition  and more than 190,000 are hurt badly enough to send a claim off to the folks at ACC. Every single man woman and child that went to watch those games has been hurt. The cost of the carnage, $3.5 billion.

It’s front page news, worldwide, Thousands Maimed in Rugby Disaster, New Zealand’s Darkest Day. 

OK, so it’s a little far-fetched, no analogy is perfect, but it gets the message through. That’s how many people get injured in the workplace each year, according to the Independent Taskforce on Workplace Health and Safety, the job in hand, cutting that number by 25%, one full Eden park. No mean feat.

Likely outcomes? A large-scale cracking down on those at the top, meaning heftier fines and penalties for companies and directors. Even our biggest fines fall far short of Australia‘s. ( And we all know how much we hate falling short of anything particularly when it comes to the ‘strayans).

So while we look across the ditch and ramp up our fines your company might get caught in the spotlight. The spotlight will be expensive.

Check your health and safety policy before it’s too late. Be proactive, check with us if you need help with the nitty-gritty.

Want a few more details?

Click the link below.

http://www.buckettlaw.co.nz/Site/articles/2012_Health_and_Safety.aspx

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Harry Caught with his Pants Down; Queen wears a Hoodie

TESSA KATE HOGG   04/09/12

The poor Royals; the recent photos of Harry’s baller weekend in Vegas may just be the tip of the iceberg and the Queen, in despair, has taken to wearing a hoodie.

Granted, most of us aren’t  third in line to the throne and could do naked cartwheels through Caesar’s palace without anyone batting an eyelid. Anything goes in Sin City. Unless you are Harry, his PR team or a member of the Royal family, the photos that emerged from the red-headed royal’s Vegas rager are funny (so far) and (reasonably) harmless.

Nonetheless, there are a few career lessons to be learnt from Harry’s nude frolic.

Will the Vegas hijinks have major consequences for Harry? Maybe not, but for the average Joe, what happens when ‘what happens in Vegas’ follows you home?

Back in the day, what went on tour might have stayed on tour and poor old Harry may have slipped under the radar. But now technology can quickly and quietly throw you under the bus.

When, like Harry, you decide for whatever reason, that strip pool is a good idea, just remember everyone has a phone, not just an old brick but a photo-taking, video-making, all access pass to career suicide. Anyone can take a snap, tag it, post it, copy it, tweet it. One day your ballin’ in Vegas, the next (depending on your choice of company) you’ve gone viral..

For the less royal,  whether it ends up as a dent in your reputation or before you even get your foot in the door, employers are aware of what’s happening on-line and those antics may come back to bite you.

Some, like Wellington receptionist Nicola, are wary of the internet’s wicked ways: “I’m scared of Facebook because I’m old”. Yet, those of us from gens X, Y and Z don’t seem to share this caution.  We should;  a new survey released by US applicant screening company Jobvite this year shows that 92% of employers are either using or planning to use social networks during recruitment. Almost half will always look at an applicants social media site. What are they looking for? According to the survey: drugs, alcohol and bad spelling. Oh Harry,  two of three aint good.

Despite  being officially on leave, the playboy prince will get his knuckles rapped by his employers, the British Army. As one of the Army’s highest profile officers he will be brought to heel by his superiors, although they have made it sound fairly mild (old chap): “there won’t be any shouting and ranting, but Harry will be reminded that he has overstepped the mark. It doesn’t matter that the incident took place on leave, behind closed doors.” 

While Harry “might well get away with it because of his youth and notoriety”, employment law expert Barbara Buckett emphasises that the law in this area is murky , particularly where technology is concerned: “what’s private is private, but you don’t want to find yourself caught in the grey area.”

Whether you can be fired for social media faux pas In New Zealand is a matter of fact and degree. If the gaffe is public, which many online antics are, then your professional standing might take a blow. If so there is a good chance this will reflect on the business and affect your ability to do the job, just ask the kid responsible for  molesting Burger King lettuce..  http://www.wkyc.com/news/article/252641/45/Mayfield-Hts-Burger-King-worker-fired-when-lettuce-pic-goes-viral.

Salad aside, we (common-folk) are unlikely to cause the media frenzy that Harry, in all his ginger glory, has. Nonetheless, technology has evolved and drunken romps can follow you all the way into the office. If you are an employer, be clear in your policies as to what will be tolerated and what will not. If you are an employee, be careful.

In the stone cold light of day the hangover may not be worth it. If there’s a chance your employers might see it then strip pool is (probably) less than wise.

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Changes on the Horizon

Employment law changes are afoot… Recently, Labour Minister Kate Wilkinson announced a number of changes to the Employment Relations Act 2000 (ERA), particularly with regards to collective agreements; the secret ballot member’s Bill also received the Royal assent on 14 May. The nuts and bolts of both are outlined below.

Secret Ballots for Strikes

Full name “Employment Relations (Workers’ Secret Ballot for Strikes) Amendment Bill 2010

  • WHO – Unions and their members of essential and non-essential industries.
  • WHAT– passed by Parliament by one vote, will require a secret ballot before a strike action can take place. A simple majority (of those entitled to vote who do vote) must agree to strike. If not it will be an unlawful strike under s86.
  • UNLESS- a strike on health and safety grounds (lawful under s84)
  • WHEN- 12 month lead in time
  • WHY-  to ensure that a strike is the actually wanted by  a majority of the union members

Extension of Flexible Hours

  • Currently the right to request flexible working hours only available to caregivers, and only then after six months of employment.
  • Wilkinson proposes “ extending the right to request flexible working arrangements to all workers, right from their first day on the job”

Removing the “30 day rule”

  •  Currently employers must automatically place new employees under the terms of any applicable collective agreement for the first 30 days of employment.
  • WHY? Employers with collective agreements will be able to bargain with/ offer new (non-union member) employees their standard individual employment agreement at the start of employment. Arguably, this new possibilities with trial periods, which have previously been difficult as after 30 days a new employee is no longer “new” under the legislation and therefore cannot be placed on trial period.

Mandatory Notice of Strike/ Lock out

  • Currently – written notice of a strike or lockout is only required where “essential services” are involved.
  • WHAT- Unions and employers of all industries will have to provide notice.
  • WHY? More details will be provided in respect of the period of notice required etc but most likely aimed at “lightning strikes” without any/much prior notice.

Employers can opt out of MECA negotiations

  • WHAT “multi-employer collective agreements” s31
  • Currently employers are required to bargain with competitors and competitors’ employees when bargaining for a MECA.

Removal of the requirement to conclude bargaining

  • Currently As part of the requirement of “good faith” Employers are required (Under s33)  to conclude bargaining unless there is a “genuine reason” to not do so.
  • WHAT This proposed will repeal amendments made in 2004, while good faith remains, requirement to conclude will not.
  • This has been controversial as many have questioned at what point ‘good faith’ will be deemed to be discharged.

Allowing Partial Pay Reductions for Partial Strikes

  • WHAT Currently, union members can ‘partially strike’ ‘go slow’ eg not answer emails/ calls yet maintain full-pay
  • WHY Reduce the incidence of tactical ‘partial striking’ causing disturbance without any individual loss. In such situations, employers have wondered whether they can deduct partial pay it is hoped that this will reduce confusion and align NZ law with other jurisdictions.

Taking away Unions 20 days “Head-Start”

  •  WHAT- Employers will be able to initiate bargaining at the same time as unions
  • Currently  Employers cannot start bargaining until 40 days before expiry of the CEA whereas unions are entitled to start 60 days before expiry, effectively giving unions a 20 day “headstart” when initiating collective bargaining.

 

See press releases below :

http://www.beehive.govt.nz/release/improvements-employment-law-announced

http://www.beehive.govt.nz/release/minister-welcomes-passing-secret-ballot-bill

http://www.katewilkinson.co.nz/index.php?/archives/385-Improvements-to-employment-law-announced.html

TESSA KATE HOGG 28/08/2012

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Sex and the Site: Wolf Whistling Workers

TESSA KATE HOGG 21/08/2012

Ahh the wolf whistle. The mating call of tradies. It’s as kiwi as a late night pie, sausage sizzle fundraisers, mint sauce with your Sunday roast. That bit of cheeky banter as you bypass the building site may not be new, but it seems some construction companies are taking it seriously and likely lads are being told to button it or risk their jobs.

The wolf whistle has been under the media spotlight recently both home and abroad. In the US, a construction billboard caused a stir which lead to online petition, an official statement of apology and the removal of the sign. The sign had read: “We apologize for the whistling construction workers, but man you look good!”

Here in Godzone, according to Beck Eleven of the Sunday Star Times, workers are turning to code to get away with their antics following warnings from employers. While there might not be “thou shalt not wolf whistle” paragraphs in their employment contracts, employers like Peter Lockhart of Naylor Love (fantastic name) were cracking down on the practice, “we just don’t tolerate it”.

Wolves get a bit of a bad rep; destined to be the baddie in all Disney stories, they’re always hungry and can’t be too picky about when the next meal comes along. Apparently it all started when naval lads needed to alert each other to on-shore eye candy. The whistler sounded approval; they were hungry… like the wolf. But things have really come on since those days…

It’s not just women that get the whistle treatment.  Boats, BBQs, boy’s toys, anything sufficiently desirable to the kiwi bloke might make the cut. The wolf whistle has also proven a favourite call of the cougar when showing her approval of a new stud in the environment.

These days it might not be a whistle per se, “we might yell out one of the guy’s names or number, it’s more about getting the girl to look and embarrassing the other guys”. But the appreciation of a good looking (l)ass is ingrained in the culture says Wellington builder Mick: “we would probably all flock to the window, it’s a bloke’s world, but it’s not meant to be offensive, most girls would know it’s pretty harmless”.

It does seem that there is many a fan of the innocent banter. Rather than take offense, one Wellington professional commented: “I think it’s great. There’s a certain age where it’s flattering, like being asked for ID at the supermarket”. She’s not alone; according to a recent UK survey 8 of 10 women enjoy being paid a compliment, even if it is from a stranger.

This guy might not draw too many complaints from his targets..

However, it does seem to come down to whether it’s cheeky or creepy, “there’s a fine line” says Victoria University student Grace Blanks. “It depends on the guy and the situation. But if you walk past a building site, it’s meant to be a bit funny, a bit appreciative, it’s meant to be a compliment”. Wellington receptionist Caitlin MacMurray agrees: “it depends, if I can see them and they look around my age, and cheeky then it’s alright”. Another noted: “there is definitely a difference between the nice way and a nasty way though.”

Despite the advocates, it seems the wolf whistle may have had its day. Back in 2008, UK’s leading building firm Wimpey banned all workers from whistling, claiming it was outdated and off-putting to the  “savvy and sophisticated” female house-hunter. All name jokes aside, it seems Kiwi employers are following Wimpey’s lead and even if it’s not explicitly said, workers like Mick are showing (some) self-restraint in their pursuit of the babe on the street: “you wouldn’t yell anything crude, as far as I know there’s no policy against it but it is common sense.. you’re working on sites with the construction company’s name all over it, you wouldn’t put the companies name in jeopardy.”

The line the employer takes on this matter depends on how they want to be seen. According to employment law expert Barbara Buckett: “there’s a presumption on a construction site that you are a certain type of worker, a red blooded kiwi bloke – the work force is changing though and many employers might want to get away from this.” She notes that: “sometimes it can look unprofessional, other times it’s all in good humour”.

There is no doubt this behaviour is deeply ingrained in the culture, “it stems from the top, if the culture is there then it’s more likely that often the lads will be influenced by management” says Barbara. So the first port of call is having a good look at the culture on site. Then it pays to have your policy and employment agreements as clear as possible. While there may be nothing wrong with the odd whistle, it can be one of those floodgate situations where allowing wolf-whistling opens the gates to much worse.  Buckett Law’s policy kits might be just the ticket to get your lads in line. Whether you’re dealing with a wolf pack or a lone wolf, sex and the construction site, it’s an explosive combination.

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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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DOTCOM DILEMMAS IN YOUR WORKPLACE

PREVENTING ILLEGAL DOWNLOADING AT WORK:

HOW EMPLOYERS MAY BE AT RISK

The recent Kim Dotcom saga has placed the issue of illegal downloading back in the media spotlight. Although the Megaupload case involved a global business that allegedly facilitated millions of illegal downloads per day, the issue of illegal downloading has implications much closer to home or indeed the workplace.

The Issue in New Zealand

The Copyright Amendment Act 2011 which came into force in September last year aims to crack down on illegal file sharing, (for example downloading music, movies, and software. In this new regime the employer, who comes into the definition of ‘account holder’, can be found responsible for an employee’s illegal use of the internet.

Who Are You Responsible To?

Copyright owners of the downloaded or uploaded content can seek compensation under the Act.  As an employer YOU could be hit with a fine of up to $15,000.

• FIRST… The internet service provider (eg Telecom, Telstra Clear, Slingshot) will be issued a detection notice of illegal file sharing by a copyright owner.

• THEN…Under the Act the ISP is required to serve notice of the infringement on their account holder. In an employment context THIS WILL BE YOU and not the individual employee. The notice will follow a’ three strike’ regime

3 STRIKES AND YOU COULD BE OUT OF POCKET BY $15,000

STRIKE 1

First detection notice for a first infringement

STRIKE 2

Warning notice for a second infringement

STRIKE 3

Enforcement notice for a third infringement

If it gets to an enforcement notice, the copyright owner can take their case to the copyright tribunal which has the power to fine you up to $15,000. Under this law the District Court also has the power to suspend your internet account for up to 6 months. This is currently not in force and is not expected to be until 2013. However the Government can bring it into force at any time if it sees fit.

Is This An Issue In My Workplace?

Red Flags

If your employees are accessing their favourite TV programmes, movies, or music on sites like Kim’s megaupload without paying for them then there is potential for copyright infringement. Names like limewire, utorrent, bittorrent or frostwire on your workplace computer system are warning signs that this could be happening. If so, it is better to nip this practice in the bud before it becomes a financial headache for your business.

WE RECOMMEND YOU…

• Know the rules,  nip any potentially illegal practice in the bud

• Audit all workplace computers to check for installation of any file-sharing programmes, if you find them uninstall immediately

• Consider an addendum to your employee internet usage policy clearly outlining that illegal file sharing could be considered grounds for serious misconduct

• Make sure your current internet usage policy is as clear and concise as possible

• If you receive a notice, do not ignore it but bear in mind it can be challenged

WE HAVE THE TOOLS TO HELP…

Our Copyright Infringement Kit

We can work with you to…

– provide clear policies on internet use

– offer employment agreements spelling out permitted use and penalties

– give advice on protecting your business from loss and damage resulting from internet infringement.

NEED TO KNOW MORE?

Contact the team Buckett Law- the employment law specialists and get the policies not the problem!

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