Employer Services Ltd - Murray Broadbelt

12/12/2024

Employer Services Limited
December Newsletter 2024

CHRISTMAS/NEW YEAR HOLIDAYS
We will be closing our office for the Christmas/New Year break from Friday 20 December 2024 and re-opening on Tuesday 7 January 2025.

If you’re in need of advice or assistance during the break, our Director Murray Broadbelt is available by email and mobile phone throughout ([email protected]; mobile 0274300113). One of our team members Dave Watson is also available on [email protected]; mobile 021720566.

With Christmas almost here, we remind you of the public holidays coming up:
• Christmas Day falls on Wednesday 25 December
• Boxing Day falls on Thursday 26 December
• New Year’s Day falls on Wednesday 1 January 2025
• The Day after New Year’s Day falls on Thursday 2 January

Because all four public holidays fall during the normal working week this year, they are observed on the day on which they fall and are not transferred to another day.

DISCIPLINARY MEETINGS AND DISMISSALS
If you want to dismiss an employee (whether it be for poor performance or misconduct) and you have followed a fair and reasonable disciplinary process, you need to issue a preliminary decision and seek comments or a written submission from the employee before making your final decision. Allow a further 12 to 24 hours for the employee to comment, then consider anything that the employee has to say before issuing your final decision.

We can guide you through the process to minimise the risk of an unjustified dismissal claim – give us a call for further advice before embarking on this process.

RESTRAINTS OF TRADE
Whilst restraints of trade can prevent employees from competing with your business after their employment ends, they won’t be enforceable unless:
• You have legitimate interests like confidential information or customer relationships to protect
• They're reasonable in geographical distance and timeframe
• You’ve given due consideration for the restraint, i.e. you’ve compensated the employee for the restraint either as part of their wage from the start or as an additional payment

So, choose the right restraint according to what you’re trying to protect, and take into account the particular role the employee has performed in your business – the more senior the role, the more stringent the restraint can be.

Generally, restraints of trade are for:
• Non-competition (can't work for competitors)
• Non-solicitation of existing and former clients (can’t poach your clients)
• Can’t work for your clients/customers
• Non-solicitation of staff (can’t poach your staff)

REDUCING REMEDIES PAID TO EMPLOYEES WHO’VE CONTRIBUTED TO THEIR OWN DEMISE
Minister for Workplace Relations and Safety Brooke van Velden says employees can be incentivised to ‘try their luck’ raising a personal grievance in the hope of getting a payout. The Government has unveiled plans to reduce the amount aggrieved employees can be compensated by their employers – to zero in some cases. Both the Employment Relations Authority and Employment Court can make an employer compensate an employee if the employee can successfully argue they’ve been unjustifiably dismissed, sexually harassed, or treated unfairly.

Currently, remedies can be discounted to reflect the employee’s culpability in the dispute, but Minister van Velden wants to change the law, so that employees guilty of serious misconduct can have their remedies for hurt and humiliation discounted by up to 100% even if the employer’s process is flawed. Van Velden also wants to remove the ability for an employee to be reinstated in a role, and compensated for ‘hurt and humiliation’, if their behaviour contributed towards the dispute. The aim is to prevent employers from being disproportionately punished for minor procedural flaws in employment agreements and/or paperwork if the employee is the one more seriously at fault.

There has been a rise in the number of personal grievance claims, partially thanks to ‘no-win, no-fee’ services offered by employment advocates, that encourage employees to pursue claims with little risk to themselves. Employers often feel forced to settle rather than fight and face huge financial claims/payouts. Van Velden says she will introduce a bill – the Employment Relations Amendment Bill – to Parliament next year to bring about the changes.

REASONS FOR A RESTRUCTURE/REDUNDANCY
1. Genuine business reason – good transparent evidence, such as financial reports, sales figures, reporting lines etc. must support these reasons.
2. Position must be superfluous to the needs of the business – the restructure cannot be personal: it is the role and not the person doing that work that is the focus of the restructure.
3. Significant change to the role – minor changes to a role do not require a restructure. Roles that are very similar will be considered existing and the current incumbent should remain in the role. A significant change requires more than a 20% change to be considered ‘different’.
4. Restructure is not a good reason to exit employees from their employment. Poor performance or misconduct should be dealt with through a proper performance management plan or disciplinary process.
5. The process requires a fair and reasonable process in accordance with good faith principles. This means providing to the affected parties all relevant information relied upon by the employer for the proposed redundancy. Failure to provide all relevant information may make the redundancy unjustified and give rise to a personal grievance claim.
6. Redeployment – this is a crucial step when conducting a lawful redundancy process. When an employer disestablishes an employee’s role, they are required to explore any potential opportunities to retain the employee in a different role before dismissing them for redundancy. Termination of employment should always be a last resort. Where there is a vacant role which an employee impacted by restructuring has the necessary skills and experience to perform or would be capable of performing the role with reasonable training, the job should be offered to the employee, even if the role is at a lower level or for less pay.
7. Selection process - where two or more positions have been disestablished and a new hybrid position established, the employer will need to undertake a selection process to determine which of the affected employees should be redeployed into that position. The criteria for selection must be objective, transparent and relevant to the specific role. It should not consider previous misconduct or performance issues. The affected employee/s should still be considered as the preferred candidate prior to considering other unaffected employees or taking the role to market. This is another common mistake employers make. It is only after an employer has genuinely considered all possible redeployment opportunities (even in other branches or departments), and has reasonably concluded that they are not suitable, that it can move forward with declaring an employee redundant.
8. Restructure/Redundancy is probably the easiest area of employment law to get wrong. Even minor errors or oversights can result in an expensive personal grievance claim, so it’s advisable to seek advice before taking this step.

We wish you all a very happy festive season and look forward to catching up in the New Year 2025!

Murray, Wendy and Dave

16/08/2021

A Word of warning to employees and employers..........
Do not breach contractual obligations that extend beyond termination of employment and especially don't breach mediated agreed settlements.
A former employee of a Real Estate franchise in the Far North did and ended up in the Employment Relations Authority. Wendy Brown who according to the Companies Office is the sole Director of Northland Realty is up for penalties and costs. See the link:

19/02/2021

EMPLOYER SERVICES LIMITED
FEBRUARY 2021 NEWSLETTER

Firstly, we’d like to wish you all a belated Happy New Year as we head into 2021, albeit with some caution as the Covid pandemic continues to play havoc with our everyday lives. But there is some good news: the Government has again stepped into the breach to provide support and assistance to employers and employees affected by Covid-19, whether it be symptoms, self-isolation, lockdowns or restrictions.

COVID-19 SUPPORT FOR EMPLOYERS

1. Covid-19 Short-term Absence Payment

Work and Income’s website says:
Where an employee is entitled to be paid as per their employment agreement or the law (e.g. by taking paid sick leave) the employer will use the subsidy to pay the employee their ordinary wages and salary while they are waiting for the relevant test result.

Where any employee wouldn’t otherwise have an entitlement to be paid if they are not able to work (e.g. if a worker has used up their paid sick leave so would be on unpaid leave) the employer:
Should try to pay their worker as if they had worked that day; or
They must pay at least the full amount of the Short Term Absence Payment to the employee while they are waiting for the relevant test.

If the employee’s usual wages are less than or equal to the Short Term Absence Payment, the business must pay the worker their usual wages. Any difference should be used to help pay any other affected staff.

Our View:
It is a $350 one-off payment or subsidy paid to the employer to help pay the employee who is required to be absent to have a Covid-19 test and await the results. The payment should be used in the first instance and any shortfall can be topped up with paid sick leave or at the employee’s request and the employer’s agreement, with other types of paid leave, such as annual leave or alternative days. When entitlements are used up, the remaining period becomes leave without pay. The employer and employee can of course discuss and agree on other options between themselves.

Who can get the Covid-19 Short-term Absence Payment?
Businesses can apply for the Short-term Absence Payment:
if they’ve been advised that their worker (or self-employed person) is staying at home awaiting a Covid-19 test result in accordance with public health guidance; or
they are the parent or caregiver of a dependant who is staying at home waiting for a test result; or
a household member or secondary contact of someone who is a close contact of an infected person and the worker has been advised to stay at home while waiting for the close contact’s test results.

It’s important to read the Ministry of Social Development information on eligibility criteria. The Short-term Absence Payment does not cover someone who decides themselves to go and get tested without having been instructed to do so by public health officials or their doctor.

2. Covid-19 Leave Support Scheme

For longer absences from work because of Covid-19, the Leave Support Scheme is available for eligible employers, including self-employed people, to help pay their employees who need to self-isolate and are not able to work from home.

To be eligible, your workers must:
Be unable to come to work because they are in an affected group and have been told to self-isolate; and
Be unable to work from home

Anyone who is unwell should call Healthline on 0800 611 116 or talk to their health practitioner. Employers should encourage employees to call if they are unwell or showing any of the following symptoms:
New or worsening cough
Sore throat
Shortness of breath
Runny nose
Loss of sense of smell

The Leave Support Scheme is paid at a flat rate of $585.80 for people normally working 20 hours or more per week; or $350 for people working less than 20 hours per week. It is paid as a lump sum and covers two weeks per employee from the date of the application.

Visit the Ministry of Social Development website for more information on the payment and eligibility criteria: https://www.workandincome.govt.nz/about-work-and-income/news/2020/covid-19-financial-support-for-businesses.html

3. Covid-19 Wage Subsidy

If there is an escalation in Alert Levels (3 or 4) anywhere in New Zealand, lasting seven days or longer, the Wage Subsidy scheme will be in place to support employers to pay their employees. Payment rates will be $585.80 for full-time workers (20 hours or more per week) and $350 for part-time workers (less than 20 hours per week).

4. Resurgence Support Payment

From late February 2021, a Resurgence Support Payment will be available for eligible businesses throughout New Zealand if Alert levels remain at Level 2 or above for seven or more days. This is a one-off payment to assist businesses adversely affected by the escalation in Alert Levels.


Enquiries: If you are looking for a policy to deal with Covid-19 in your workplace, please give us a call or email us to discuss your particular requirements.

Note: We are constantly updating our client database and if you would like to continue to receive our occasional newsletters regarding topical issues relating to employment law and employment relations, please click on the link below to subscribe.

http://eepurl.com/cqain9

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Remember to sanitise, use the QR code sign-in and stay safe!

From Murray and the team at Employer Services Limited
www.employerservices.co.nz
(09) 4300113

Employer Services Limited are employment relations consultants who are able to assist and act on behalf of employers in employment law and human resources.

18/01/2021

Public Holidays Christmas 2020 to Easter 2021

Public Holidays
Employees are entitled to a paid day off on a public holiday, if they would have worked on that day if it wasn’t a public holiday (ie the public holiday falls on an ‘otherwise working day’ for the employee).
There are 11 public holidays. The public holidays are: Christmas and New Year: Christmas Day (25 December), Boxing Day (26 December), New Year’s Day and the day after (1 and 2 January), Waitangi Day (6 February) ANZAC Day (25 April), Good Friday and Easter Monday (dates vary), Queen’s Birthday (first Monday in June), Labour Day (fourth Monday in October) and the relevant provincial Anniversary Day (date determined locally).

Mondayisation
If Waitangi Day, ANZAC Day, Christmas Day, Boxing Day, New Year’s Day or the day after New Year’s Day fall on a Saturday or Sunday and that day would not otherwise be a working day for the employee, the holiday is transferred to the following Monday (or Tuesday for Christmas Day, Boxing Day, New Year’s Day and the day after New Year’s day when they fall on a Sunday) so that the employee still gets a paid day off if the employee would usually work on that day.
If the holiday falls on a Saturday or Sunday and that day would otherwise be a working day for the employee, the holiday remains on the Saturday or Sunday and the employee is entitled to that day off on pay. An employee is not entitled to more than four public holidays over the Christmas and New Year period, regardless of their work pattern, or more than 11 public holidays in one year.

This Christmas and New Year period the Public Holidays are:
Christmas Day Friday 25th December
Boxing Day Saturday 26th December
New Year’s Day Friday 1st January 2021
Day after New Year’s Day Saturday 2nd January 2021
If an employee does not normally work on either of the two Saturdays, then the Public Holiday is transferred to Monday. See Mondayisation above.

20/04/2020

Government Financial Assistance for Employment Advice (COVID-19)

“ The Regional Business Partner Network is funded NZ Trade and Enterprise (NZTE) and Callaghan Innovation. The Network aims to assist business growth by providing eligible businesses with specialist advice and support, and funding to enhance business capability including research and development.”

A $2000 grant/voucher may be available to your business to get employment relations advice on matters relating to COVID-19, such as restructuring, wage subsidy, personal grievances, amending employment conditions etc.

Employer Services Ltd is registered as a Service Provider .

Businesses must have less than 50 full time equivalent employees and undergo an assessment by a Growth Advisor from the Regional Partner.

In Northland it is Northland Inc.

Contact [email protected] to get started and they will get in touch.
Note that the main RBNP website will refer to training and coaching but the Government have relaxed these rules to cater for “ advice” for COVID19 related matters.

This page has information, advice and support resources to get your business through the evolving impact of COVID-19.

13/04/2020

EASTER and ANZAC DAY PUBLIC HOLIDAYS

Easter Weekend

Easter 2020 falls on Friday 10 April (Good Friday) through to Monday 13 April (Easter Monday).
Both Friday and Monday are Public Holidays and will attract time-and-a-half rates for employees who work.
If either of these days is a normal working day for the employee, he/she will also be entitled to an alternative holiday (day in lieu).
Saturday 11 April and Easter Sunday 12 April are not Public Holidays, and employees who work these days should be paid as normal. No additional entitlements apply, but there are strict rules around shop trading on Easter Sunday which employers need to be aware of.Restricted Shop Trading on Easter Sunday.The Shop Trading Hours Act 1990 was amended in 2016 to enable territorial authorities (i.e. local councils) to decide whether retailers in their districts can open on Easter Sunday. They can create policies to allow shop trading throughout their district or only in limited areas, but cannot override shop trading provisions covered in other legislation, such as defining opening hours, liquor licensing provisions or determining which types of shops may open. Refer to www.employment.govt.nz for more information.
An important change to the law allows shop employees to refuse to work on Easter Sunday. The employees don’t have to provide a reason for their refusal. Employers who want a shop employee to work on Easter Sunday must:
Inform the employees of the requirement to work on Easter Sunday and notify them in writing that they have the right of refusal.
Provide the notice to the employee at least four weeks before Easter Sunday.
If an employer does not follow the correct notice requirements and then insists that an employee work on Easter Sunday, this could be considered grounds for a personal grievance.
Shop employees who don’t wish to work on Easter Sunday must:
Let the employer know in writing no later than 14 days from the date they receive the employer’s notice that they do not want to work.If a shop employee doesn’t follow these notice requirements, and their employment agreement states that they can be required to work on Easter Sunday, the employer can require the employee to work.
If a shop employee declines to work on Easter Sunday but the shop is open and/or work is made available such as stock taking or shelf stacking, the employee may decide to take a day’s leave or be unpaid for the day. The employee may not be treated unfairly or be disadvantaged in any way as a result of their refusal to work, provided both parties have followed the notice requirements set out in the Act.

ANZAC Day

ANZAC Day falls on Saturday 25 April this year. It is transferred to Monday (in this case 27th April) like some other Public Holidays that are Mondayised. They are the four days around Christmas and New Year and Waitangi Day.
For most employees the ANZAC Day Public Holiday will be observed on Monday 27th April unless they work on the actual day of Saturday 25th. If they work on Saturday 25th their Public Holiday benefits will apply that day and not Monday. The Public Holiday benefits for an employee will only apply for one day, either Saturday or Monday.This is a Public Holiday and employees who work will be entitled to time-and-a-half rates for all hours worked. If it is a normal working day for the employee, he/she will also be entitled to an alternative holiday (day in lieu) to be taken at a later stage.

Note: If the employee is not needed on the Public Holiday, it is often cost-effective for the employer to allow the employee to take the day off rather than having to pay public holiday rates and a day in lieu.

Paying employees on Public Holidays.
When paying employees for public holidays there are two questions employers need to answer:
1. If it were not for the Public Holiday would the employee be working?
2. How many hours would the employee normally work on that day (including overtime, commission, bonuses etc.)?
This would be calculated as the employee’s Relevant Daily Pay. If it is not possible to work out the number of hours an employee would have worked (for example, if the number of hours varies from day to day and from week to week), then use the Average Daily Pay calculation (i.e. averaged over the previous 52 weeks).

Covid 19
If employees have agreed to a reduced income as a result of Covid19 such as for example 80% or the Wage Subsidy amount the Relevant Daily Pay rate would be current pay for the day (reduced amount). See points 1 and 2 above.
Some employers may wish to pay the pre-Covid19 Relevant Daily Pay or use the Average Daily Pay calculation (averaged over the previous 52 weeks).
This is our opinion based on best advice to date. Employers should be keeping a watch on the various Government Covid19 websites for any updates.

13/04/2020

Ralph Fannin v Liddington Electricall

Liddington Electrical of Whangarei defended a claim of unjustified dismissal by Ralph Fannin.
Well done Liddington for taking a stand.

Liddington Electrical says Mr Fannin has serious criminal convictions which he failed to disclose at the job interview when asked by Mr Liddington.
When Mr Liddington became aware of the criminal convictions, Mr Fannin attempted to negotiate an exit from Liddington Electrical in a manner that Mr Liddington considered amounted to blackmail.

Mr Fannin resigned before Mr Liddington was able to properly consider the situation.
Mr Fannin has criminal convictions for credit card fraud and identity theft while employed as a teacher at Auckland Grammar School.

The Employment Relations Authority found he resigned and was not dismissed.
The links to the substantive hearing 20 January 2020, followed by the link to the Costs decision 2 March, 2020.

https://www.employment.govt.nz/assets/elawpdf/2020/2020_NZERA_1.pdf

https://www.employment.govt.nz/assets/elawpdf/2020/2020_NZERA_99.pdf

13/04/2020

MINIMUM WAGE 1 APRIL 2020

The adult minimum wage increased on 1 April 2020 to $18.90 gross per hour.

This minimum wage applies to all employees aged 16 years and over who are

not starting-out workers or trainees
involved in supervising or training other workers.
The supervising or training needs to be part of the person's job, not a one-off event.

The starting-out minimum wage increased on 1 April 2020 to $15.12 gross per hour. This minimum wage applies to workers who are:

16 or 17 years old and have not completed six months of continuous employment with their current employer. After six months with one employer they are not starting-out workers and must be paid the adult minimum wage of $18.90.
18 or 19 years old and who have been paid one or more social security benefit for six months or more, and who have not completed six months' continuous employment with an employer since they started being paid a benefit. Specified security benefits include domestic purposes benefit, emergency benefit, independent youth benefit, invalid's benefit, jobseeker support, sole parent support, sickness benefit, supported living payment, unemployment benefit, widow's benefit and young parent payment/youth payment.
16, 17, 18 or 19 years old and whose employment agreement states they have to undertake industry training for at least 40 credits per year in order to become qualified in the industry in which they are working.

If an employee is supervising or training other workers, the starting-out minimum wage will not apply and these employees must be paid at least the adult minimum wage.

The training minimum wage increased on 1 April 2020 to $15.12 gross per hour. This training minimum wage:

Applies to employees aged 20 years or over whose employment agreement states that they must do at least 60 credits a year for an industry training programme to become qualified in the area in which they are working. Many of these employees will be apprentices. An apprentice has the same minimum rights and protections under employment law as any other employee but may be paid the training wage.
Does not apply to employees who are being trained at work. It only applies to employees doing an approved industry training programme.
Does not apply to an employee who is supervising or training other workers. These employees must be paid at least the adult minimum wage.

How do I determine what six months of continuous service is?

Six months of continuous employment with an employer is calculated from the employee's first day of work. The number of hours or days per week is not relevant.
The calculation must include any time the employee was employed by the employer before they turned 16, and any time the employee was on paid or unpaid leave.
If the employee moves to a new employer, they will be a starting-out worker again for the first six months. This will apply with each new employer until the employee reaches the maximum age.

Refer also to MBIE's website www.employment.govt.nz for more information on different types of minimum wage rates, exceptions and exemptions.

27/04/2016

We have just published a small overview of the recent Employment Relations Amendment Act 2016, which has made several major changes to the functioning of zero hour contacts.

The overview also concerns the Parental Leave and Employment Protection Act, and the very important changes made to how parental leave functions in the workplace.

Read the overview here at http://www.employerservices.co.nz/blog/employment-relations-amendment-act-2016/

03/11/2013

Phillips has filed an Appeal to the Employment Court in Phillips v Croft Poles Ltd. Not sure why he has decided to appeal, but perhaps he thinks he was hard done by.
How can you resign from part of your job and stay employed if the boss doesn't agree? Bit like a Police Officer saying I will do every thing but arrest people.

12/10/2013

Can you resign from just part of your job?

The simple answer is yes, if both parties agree.
But what happens if they don't agree?
In Phillips versus local firm Croft Poles the Employment Relations Authority found that after almost 2 weeks of consultation with Mr Phillips Crofts were justified in accepting his resignation and terminating his employment.
Mr Phillips who was the Company's Steam Plant Supervisor resigned and eventually made it clear that he wanted to remain as an Operator and no longer carry out the supervisory part of his job. Mr Phillips supervised Operators over the 7 day week and operated his share of shifts as well. He was paid more than the Operators as it was a different job, albeit the actual operation of the steam Plant was the same.
Mr Phillips left a letter of resignation on the notice board and the management had discussions with him. When it became clear that Mr Phillips only wanted to resign from part of his job the management had to decide if they could or would accommodate his request. They said they would not because they had no other jobs and they wanted a Supervisor.
After considerable consultation with Mr Phillips the employer said they would accept his resignation and terminate the employment. Mr Phillips was given the option of changing his mind but he chose not to.
Mr Phillips raised a personal grievance and the employer had to defend his allegation of unjustified dismissal. This involved a mediation and later a hearing with the Employment Relations Authority.
Fortunately common sense prevailed and the claim was lost. See the determination:

http://www.dol.govt.nz/workplace/determinations/FullSummary.aspx?ID=31312162

http://www.dol.govt.nz/workplace/determinations/FullSummary.aspx?ID=31194346

06/08/2013

EMPLOYEE PRIVACY & VANCE

Many employees don't realise that when they jump on Trade Me, send a personal email, use Facebook or just surf the net on the employers computer the employer can look at what they have been doing. The very same goes for telephone calls be it on landline or mobile. The boss probably can't listen in but certainly can retrieve records.
Many employers do allow some reasonable use of emails, internet and phone calls but employees need to be aware it's not as private as your own home phone or internet.
On ANDREA VANCE, yes she was hard done by with her emails and telephone records...if they were privately owned phone lines and internet within Parliament and I understand they were. But I don't see anything wrong with Parliamentary Services looking at her access swipe card records to their own building.
I'd be interested to know what others think about this.