Tag Archives: employment law

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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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.

Image from http://888fulcrum.com/
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Are We Killing Our Workers?

During one of the many, many, “How was your Christmas/ New Years/ isn’t this weather fantastic” chats that are par for the course in January, a friend muttered that she had the sneaky suspicion that work was getting in the way of her real life. I thought, you’ve got a point there, Sheryl*. Sadly, the New Zealand Government doesn’t agree with me.

Kiwis.. we think of ourselves as No. 8 wire innovators, Everest conquerers. We pride ourselves on our open-mindedness, our relaxed approach to life. Yet, in reality, we are dragging the chain behind the rest of the world when it comes to our work/life balance and the cracks are starting to show.

Everyone's favourite  Everest conqueror. Sir Edmund Hillary

Everyone’s favourite Everest conqueror. Sir Edmund Hillary

Despite advice from the powers that be (Aunty Helen and the UN), the New Zealand Government is sticking to its guns, refusing to introduce legislation to limit the number of hours the humble Kiwi can work per week. In doing so, we’re falling behind the rest of the world with workplaces that are stuck in the dark ages of arbitrary hours, set days and places, while others move towards flex-time (or less time) and a results-based approach.

On average we Kiwis work bloody hard, 1724 hours a year according to OECD figures. That’s 175 more hours than the Danes, 86 more than those in the UK and a whopping 380 than the Germans. While no one could accuse the Germans of being lazy, they’re sitting pretty with around 9 weeks more holiday than your average Kiwi.

100_pure_nz_brand_tops_international_survey_5254246064

So what’s it all in aid of? Health? Wealth? Happiness? There’s evidence a plenty to show that this isn’t the case. In fact, that ‘work hard play hard’ attitude can get us into hot water and we’re spoilt for choice when it comes to research to back it up.

You wouldn’t think it if you wandered onto New Zealand immigrations website. It lures off-shorers to our land of ‘easy living’ with “If you’re looking for a more balanced lifestyle, you’ll find New Zealand’s got the recipe just right.” Do we.. really?

A recent study in the journal PLoS ONE shows that people that work more than 11 hours a day have a more-than-doubled risk of a major depressive episode, compared with people who work the more-standard seven to eight hours a day.

drunk worker

Another from Otago University links long hours to alcohol addiction. The study found that those who worked a 50+ hour work week were three times more likely to take to the bottle.

The daily (and nightly) grind is taking a toll. A survey of nearly 1500 kiwis, released by Hudson Recruitment this week, showed that 41.6% of employees were feeling more stressed than a year ago and 77% were shouldering more responsibility and working longer hours.

And those findings join a host of others suggesting a link between clocking serious hours and heart disease, heart attacks, higher blood pressure, lower life expectancy.

sleep-deprivation_main

If that wasn’t enough reason for you to rethink burning the midnight oil at the office consider the added extras- sitting all day is linked to a higher likelihood of developing a chronic disease such as diabetes.

Lack of sleep is also a kicker and can lead (to name but a few) to decreased memory, increased weight gain, a higher chance of having a car accident, diabetes, irritability, serious cardiovascular health problems, and possibly cancer (no  biggy). According to The National Sleep Foundation we should be shooting for at least 7-9 hours. So get home, keep work out of the bedroom and get some decent shuteye.

We’re burning out our employees, the long hours+ill-health combination also means lost labour in the long-term and higher medical costs for employers, the government and you ( the tax-payer).

man-sleeping

But doesn’t working harder make you richer? Nope.. it turns out productivity fuels wealth, not hours worked. Hence why so many companies overseas are turning to flexible approaches (more on that next week).

While the hours=results mentality works for robots in a production line, surely we’ve moved on. Germany (the powerhouse of the EU) and their extra 9 weeks holiday proves this if nothing else.

In the corporate world, staying at work late amongst the underlings is almost a competitive sport; does it change the work output? Invariably, no. people can only pump out so much good work a day, outside of this is when mistakes occur. These mistakes can be dangerous. A recent study of hospital interns found that young doctors who worked longer shifts made almost 36 percent more serious mistakes, like giving the wrong dose or the wrong medicine altogether to patients.

businessman_on_the_beachBut why not just work hard, play hard? (Says the Government) To that I say, what use is the working if you don’t have the time or energy to do the playing? And where’s this work-life balance recipe you speak of?

Don’t get me wrong, I’m not advocating the life of a sloth, but ask yourself.. is work getting in the way of your life?

10 hours plus.. it’s not healthy, it’s not making us wealthy.. go on workaholics, go home, have dinner with your family, sleep for eight hours, take that holiday… maybe one day we will be as powerful as the Germans.

** names have been changed to protect anonymity

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California’s Next Top Lawyer..

Ahh reality TV, the fierce competition, the sweet victories and crushing blows. Tears, tantrums and humiliation… Sure, it’s entertaining (with the exception of the Ridge saga), but is it the best way to hire employees?

A Californian Law firm seems to think so, with eager young legal beagles auditioning to be the “Next Top Associate.” The recruitment process (see ad below) brings the budding NTA’s together, armed with laptops and pits potential employee on employee. Assignments are dished out and one young hopeful is eliminated each day for two weeks until one remains. The last man (or woman) standing will … (cue Ryan Seacrest) Have what it takes to be Mellen Law Firm’s Next Top Associate. A Hunger Games-esque fight to the (metaphoric) death.

If you saw a job advertisement that suggested you audition for a professional position as if you were a contestant on a reality show would you? How much does this say about the slim pickings job market in the USA.. or here for that matter?

“It’s brutal, but everyone knows it’s going to be brutal, so nobody’s feelings are hurt” says Matt Mellen, the firms namesake and serial lover of reality television. It’s not all bad though- the applicants get paid for the pleasure, around  $25 NZD an hour, and in doing so, gain litigation experience in a short, sharp blast. It also “perks up” existing employees with the cold hard realisation that it is a dog-eat-dog world out there and the competition for jobs is fierce.

Sure, competition is healthy in the right dose. It can drive results and prevent a worker from reverting to sloth-mode, where just enough that needs to be done, is done, no more no less. But depending on your workplace you’re likely to have a mixture of personalities. Those who hide away from competition and those who thrive on it.  A seemingly innocent office sweepstake or game of monopoly can turn into all out war for those with the competitive streak. While competition in the right quantity is beneficial, too much can turn toxic. By pitting employee on employee, bullying can emerge. Watch this space, we have a few yarns on bullying up our sleeve.

So while debate rages in the twittersphere as to whether New Zealand does, in fact, have talent (still up in the air), the Ridge novelty fades and facebook groups are formed for the sole purpose of expressing a desire to hit Thomas from My Kitchen Rules with a frying pan; we now are being asked to fight tooth and nail for the privilege of a job.

One wonders whether maybe, just maybe, the obsession with competition based reality shows has gone too far.

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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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