Tag Archives: employee

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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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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RISKY BUSINESS

safetyIn the past few months the newspapers have been inundated with stories of workplace accidents where employers have been ordered to fork out tens of thousands in fines and compensation.

  • Canpac was ordered to pay $35,000 to an employee who had lost part of her finger in a slitter machine.
  • Centrelink (Australia) was ordered to pay  compensation to an employee who suffered from an anxiety and depressive disorder after being told she was required to work between the hours of 8am – 4pm Monday-Friday.
  • The Court ordered Wealleans Groundspread Ltd to pay over $100k for failing to protect the safety of workers following the death of an employee who was operating a truck adapted to spread fertiliser.
  • Last year, 51 people were killed in workplace accidents in New Zealand.

Proposed changes to the law

Worksafe New Zealand was established to reduce our workplace injury and death toll by 25% by 2020. The incentive arose from the Pike River disaster, in which 29 of our men perished. The Health and Safety Reform Bill is a much-needed piece of legislation to protect the health and safety of our workers. The Bill allows for greater participation from all workers to get involved in health and safety discussions in the workplace. There will be higher legal requirements placed on managers and company directors to manage risk, and to ensure a safe working environment. At present the penalties for non-compliance range from $250k – $500k and 2 years imprisonment. The suggested penalties in the new Bill range from $300k – $3m and up to 5 years imprisonment – plenty of reasons to not be caught short of full compliance.

simpsonsThe Bill means that there can be no passing the buck, nor is there any room for ignorance. Directors and senior managers must be aware of the positive duties imposed on them and their obligations under the new legislation.

Similarly, employees should be aware of health and safety risks/requirements and should raise any concerns with their employer. A worker was recently fired from Top Energy for not following safety procedures. The Employment Relations Authority found that the employer was justified in terminating the employment due to the employee’s failure to follow safety procedures which resulted in a serious situation – his own electrocution. Therefore it is up to everyone in the workplace, not just employers/managers, to ensure safety comes first.

A Focus on Occupational Health

Worksafe also aims to focus on occupational health. You don’t need to be working in a dangerous physical environment for your health to suffer. Workplace hazards which need to be managed include physical, mechanical, biological, chemical and psychological. In particular, there are many psychological stresses on employees, such as:risk assessment

  • Long working hours
  • Large workloads
  • Tight deadlines
  • Work intensification
  • Poor work-life balance
  • Feelings of job insecurity
  • Ageing workforce
  • High emotional demands
  • Learning and adapting to new technology

Directors and managers must recognise and control potential hazards. Education and a broad knowledge of the legal requirements and duties imposed on individuals will be extremely important to avoid accidents or penalties moving forward. Liability will be based on the new standard set to kick in early 2015.

For further information or advice to ensure compliance, contact BuckettLaw – the employment law experts.

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Welcome to the Future

A workplace paradise?

The office of the furture. Source: PSFK

The office of the future. Source: PSFK

You need to find a quiet place to finish some urgent work, where do you go?  A library (where the man next to you sniffs, coughs and turns the page rhythmically)? A cafe (with the play group mums gossiping over screaming children to one side and the “chink chink chink psssshhhhhhhttt” coffee making on another)? You do it late at night, early in the morning, on the commute?

Think about it, we take our workers put them in cubicles in a tall building and expect them to do great work. Or at least hope for good work. But the interruptions are constant. We can’t expect people to sleep well if they are persistently interrupted. How is it any different to the office? How can we expect people to work effectively and efficiently with only short bursts of uninterrupted time?

The worst of these are managers and meetings (confirmed in Remote: office not required). Management is essential, however over-managing can be detrimental to productivity. Control-freak managers who are unable to delegate and must have a handle on every aspect of every employee’s activities are intervening and diminishing productivity. Managers call meetings which are a major distraction. About 10% of meetings are productive and the remaining 90% are unnecessarily boring. How many of us have found ourselves nodding off in meetings where orders are barked around the room between senior management and everyone else is invisible? Meetings should be “treated as a rare delicacy” and only for those few individuals to whom the meeting is relevant.

Reality is that managers and meetings are an evil necessity and that will not change any time soon. So looking ahead to the future of the office, how can we combat these unavoidable interruptions?…

The answers lie ahead

Social media as the modern day smoke break – most projections emphasise the use of social media in employment by integrating treadmill desks, cafe days, managers re-framed as mentors, trees in offices.. the future looks bright.

The Desk Of The Future…

A working platform

A working platform

Embracing the wilderness to help workers de-stress

Embracing the wilderness to help workers de-stress

Could be mobile, might be standing and could even be moving. The worker of the future may enjoy:

  • standing desks
  • treadmill desks
  • open plan desks with sound proofing bubbles
  • outdoor desks
  • talking interactive desks

Cafe days…

… any day.

virtual472

… any time…

...anyday

Work anywhere…

Imagine if one day a week was allocated to a change of environment, a  flexi-work environment, be it in a cafe, a library, on your deck in the sun. Sometimes a change of scenery is good, sometimes motivation and willingness runs out in a certain spot. As Aristotle said, “change in all things is sweet”. As long as the work gets done it shouldn’t matter where it’s getting done. For those who subscribe to the “if I cant see the person how do I know they’re working?” school of though.. get with the programme. These days with technology you can monitor what someone is doing on their computer, require them to log in regularly with updates… there are ways and means.

Out of this world office spaces…

Qihoo-360-Headquarters-by-David-Ho

Qihoo 360 Headquarters, Beijing

dezeen_Google-Tel-Aviv-by-Camenzind-Evolution_ss_15 (1)

Google, California

selgas_cano_office_madrid3

Selgas cano office, Madrid

Google has already hit the mark and other businesses shouldn’t be far off the trail. A vibrant, unique and exciting workspace is a happy & productive workplace. Google’s corporate headquarters “Googleplex” in California is state of the art, housing slides, indoor gardens,

themed social spaces and free onsite coloured bicycles for getting around the complex. The perks of a Google employee include free onsite haircuts, gym facilities, laundry facilities and onsite medical access. Even us New Zealander’s dream of one day being employed by this magical “tend to all of our needs” employer (click here). Give it time,  more and more major businesses will click on to the trend and soon our offices will resemble Disneyland. Here’s hoping.

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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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GoldenEye – who’s watching you?

We all love a good James Bond film – plenty of action, guns, spies, a gorgeous woman, and Bond comes out on top. But when this becomes your reality, minus the action, guns, and gorgeous women, who will come out on top?

GPS technology is becoming a common tool used by employers to keep tabs on their employees whereabouts. This aims to prevent employees from abusing their privilege of having use of a work vehicle, diverting from their destination, and falsifying timesheets. That brand new iPhone 5 given to you on your first day of work may have seemed like a generous gesture at the time. But when you realise your employer has been using it to track you, I would imagine you’d like to throw their generous gesture right back at them.

Why shouldn’t an employer track their employees? If their employees are where they say they are, and doing what they say they are doing, what’s the problem? Employer-friendly apps are in abundance. Beginning at the tempting price of ‘FREE’, these apps are advertised as perfect for tracking your friends, children and work colleagues. ‘Trackster’ ($2.59) is a popular choice, claiming it can “make a big difference to businesses” by increasing productivity. These GPS tracking apps can track an employee’s whereabouts, how long they have been there for, where they have been previously, and follow them while they travel. James Bond isn’t so unrealistic after all!  But with this incredible technology comes major issues of privacy, consent and reasonableness.

Should an employee have to know and consent to being ‘spied on’ by their employer? And if they do consent, where does the ‘spying’ stop? It is unreasonable for this tracking to be 24/7 surveillance.  Surely it should shut off as you leave the office at the end of the day, and resume upon your return the following morning. Yet none of the apps pride themselves in having this automatic capability yet. If your iPhone or Android is being tracked during work hours, then chances are your employer can check your whereabouts any time of the day or night. The old croaky call into work on a Friday morning because you have come down with something overnight will no longer suffice when your employer can log into their Bond technology and see you happened to be within a 30 meter radius of the local bar only 4 hours ago. Good luck explaining that one.

This leads into the issue of privacy. Surely it is none of your employers business where you were last night, whether it be a bar, gay strip club or another employee’s residence. This could lead to all sorts of other employment issues – discrimination, workplace bullying – don’t get me started! So the decision to ‘spy’ on employees could have adverse effects. In 2010 the Law Commission reviewed the law of privacy and considered the issue of surveillance in the workplace. Their report acknowledged the concern of the inequalities of power between employers and employees. The issue stated that “employees cannot be assumed to have freely consented to restrictions on their privacy, and workers need some legal protection of their privacy in order to redress the power imbalance”. However the Commission came to the conclusion that the existing law, in particular the duty of good faith contained in the Employment Relations Act 2000, was at present, adequate to deal with workplace surveillance issues.

To combat privacy issues, companies can issue policies so employees understand they shouldn’t have any expectation of privacy during work hours or when using a work vehicle. But this isn’t a guaranteed solution. What’s to stop an employee purposefully misplacing their smartphone, or accidentally leaving it at work? This would allow them some privacy and completely undermine the whole tracking regime. Ha! This Bond technology isn’t foolproof!

Or that’s what a Christchurch man thought until he was dismissed for serious misconduct after falsifying his timesheets. Mr Stuart was discovered by GPS technology fitted into his work vehicle when his supervisor became suspicious and requested their employer review the GPS records. This review revealed that often Mr Stuart’s work vehicle was parked at his residence well before he claimed to be finishing work each day. The Employment Relations Authority found that Mr Stuart was justifiably dismissed as he was employed in a position of trust, and falsifying timesheets was considered to be serious misconduct in the company’s Code of Conduct. This recent decision indicates the reality of GPS tracking in the workplace. Understandably employers want to maximise productivity, and there are employees out there willing take advantage of any situation.

Is GPS tracking the solution? Employers will love it – nothing will go unnoticed. Employees will hate it – nothing will go unnoticed. What is reasonable ‘spying’? We will have to wait with anticipation for this Bond sequel to play out.

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Minimum wage on the climb!

Exciting news for all of you struggling to make ends meet – the government has proudly announced an increase in the minimum wage is set to take place from April 1st.  Woohoo! 25 cents more an hour!  This takes our minimum wage from $13.50 to $13.75 an hour.  That’s a $2 increase per day, and workers will earn around $10 more a week.  This is before tax.  Can our lowest paid workers afford to live off an income of $550 (pre-tax) a week?

There are thousands of real people, doing real work with real responsibilities in our communities such as caregivers, security guards and cleaners to name a few.  These people have families to feed and bills to pay, purely for survival.  But what if they wish to go on a holiday, pay for a child’s school camp or dabble in a bit of Wellington’s culture? Maybe for people in minimum responsibility jobs, some might view $13.75 as a fair representation of their efforts.  When making a comparison to the UK minimum wage of £6.19, our $13.75 doesn’t look so bad. But Australia dishes out a grand $15.95, or a minimum of $606.40 per week.  No wonder so many young Kiwis are heading over the ditch.

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And the governments excuse for this pitiful increase? Labour Minister Simon Bridges claims our wage rates represent “a careful balance between protecting low paid workers and ensuring jobs are not lost as the economic recovery gains pace.”  Thus, we must consider reality. In a utopian world all employers would have the funds to comply with minimum wage requirements, no matter the economic situation. This seems to be the belief of writers of an independent report prepared for Service and Food workers union.  This report published two weeks ago identified $18.40 as a suitable ‘living wage’.  Wouldn’t this be amazing!  That’s an extra $186 per week – now that would be something to get excited about!  But in this economy, with job losses being a regular occurrence, this prospect is unfortunately out of reach.  Still, workers and employers need to stay positive.  25cents is better than nothing. And if recent trends are anything to go by, the minimum wage should continue its climb, taking you along for the ride.

And for all you employees on minimum wage, remember:

  • The harder you work, no matter what the pay, the more respect you will gain in and around the workplace;
  • A positive attitude goes a long way; and
  • Keep communication lines open between you and your employer.  If you are struggling to make ends meet, discuss your options openly.

Employers paying minimum wages, take note:

  • Most employees on minimum wage live from payday to payday.  If you want your employees to feel valued, offer them something special like concert tickets or a voucher for excellent performance.  Take a little time to show interest in your employees and keep them motivated.
  • If money is tight, simply praising employees on their performance creates a positive work environment.  
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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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Dying Man(ager) Fired for Staying Alive

It’s always good to exceed your employer’s expectations, but what if you do it just by not dying when everyone thought you would. And then you get fired for it.

This is what happened to Len Clapham, whose employers knew full well he had terminal cancer. In fact they created a position for him on this basis and employed  him on this basis.  The only problem for the Auckland-based survey company Alexander and Co came when Len didn’t cash in his chips when he was expected to.

Len resigned from his former position as a CEO in Wellington and moved up to Auckland. The expectation of Alexander and Co. was six months, “even a six month period might be optimistic” , so they asked Len to sign their standard employment agreement rather than a fixed term contract. What they in fact got was near to a year, longer if Len hadn’t been shown the door in  May 2011.

Len’s employers then made him redundant in what Clapham called a “sham redundancy”. The Employment Relations Authority agreed that the employers had “at best mixed motives”, heavily weighted in favour of edging Len out for reasons other than the downturn of business. Indeed, interest in Lens health and performance show that his employers had a great deal more than redundancy on their mind.

The Authority slammed Alexander and co for the “strong suggest[ion] that the redundancy was a sham” and the accompanying absence of consultation and Len duly received  14 weeks salary and $12,000 in compensation.

Cold comfort, perhaps.

Read more here:

http://www.nzherald.co.nz/small-business/news/article.cfm?c_id=85&objectid=10833552

http://dol.govt.nz/workplace/determinations/FullSummary.aspx?ID=20647907

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