Welcome to Bartlett Law’s Crystal Ball. In this issue we spotlight some current trends in employment law and look ahead – what do we see for the future?

CURRENT TRENDS

Workplace bullying in the spotlight

Worksafe New Zealand (previously the Department of Labour/OSH) has recently published best practice guidelines for “Preventing and responding to workplace bullying”.

They contain a definition of workplace bullying: “repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety”. Behaviour will be “repeated” if it is persistent, and it can involve a range of actions over time. “Unreasonable behaviour” means actions that a reasonable person in the same circumstances would see as unreasonable. It includes victimising, humiliating, intimidating or threatening a person.

The guidelines are a useful source of a great deal of information for employers and employees and provide a workable definition of bullying. Although this is not a statutory definition of bullying (there currently isn’t one) we encourage employers and employees to use this definition in assessing behaviour in their own workplaces. It could also be the start of an anti-bullying policy for any workplace that does not presently have one.

Age discrimination case raises privacy concerns

The Human Rights Tribunal has ruled that a Timaru man who accused Alpine Energy of age discrimination for not hiring him as an employee has the right to see the CVs of the other applicants. In a decision that raises some troubling privacy issues, the Tribunal held that Mr Waters should have full access to all documents that might assist in establishing that “persons of a younger age, with lesser skills, less qualifications, and less time engaged in similar work or similar positions, were considered more favourably”.

Although Mr Waters has agreed to sign a confidentiality agreement when he gets this information, there is nothing to indicate that the other applicants ever anticipated that their personal details would be viewed by a third party in such a case. Employers need to be aware that unsuccessful job applicants may use this decision as the basis for information requests.

Determining the true nature of an employment relationship

Only employees can claim to have been unjustifiably dismissed, and have other benefits such as paid leave and public holidays. They must also have written employment agreements.

Therefore from time to time a worker will seek a judicial determination of whether she or she is an employee.

The case of Johnson v NZL Marquis Ltd concerned a courtesy coach driver at a hotel in Carterton. The driver, an elderly man who lived alone, was a regular at the Marquis of Normanby Hotel who for over five years drove patrons home and did various other minor duties around the hotel. The employer paid him $50 “koha” for each shift but never signed an employment agreement.

Mr Johnson was dismissed after a change of ownership of the hotel and the new owner claimed he had never been an employee, but rather was a volunteer who hung around the hotel because he was lonely and wanted the company.

The Employment Relations Authority held he was not a volunteer, but rather a on-call casual employee because: he was paid for his work; payments were regularly made; the payments were made as part of Marquis’ business operations; the coach arrangement was an integral activity in the business; there were regular days of work; his activities were controlled by Marquis and it had the advantage of his time and effort; and he was not in business on his own account.

This decision illustrates how important it is to formalise the relationship between parties engaged in “work” and how the failure to do so can result in unpleasant surprises for employers.

Changes to Medical Certificates

Updated standards from the New Zealand Medical Council for medical certificates are now in force. Previously, most medical certificates would state no more than that an employee was unfit for work until a set date (or give a review date). Now, medical certificates will also give the doctor’s clinical opinion as to which activities are safe for the patient to undertake and appropriate restrictions, or unsafe activities that the patient should not undertake. They should also clearly indicate the examination date and the time period of treatment. In some (but not all) cases where there are direct implications for the employer (eg in food handling) a diagnosis may be disclosed.

Having more detailed information available will make it easier for employers to facilitate injured employees’ return to work and will assist with decision making where employee medical incapacity is an issue.

A multi-million dollar lesson in reasonable behaviour

In what Employment Court Judge Ford described as “what on the face of it appeared to be a relatively straightforward employment dispute” which “spiral[led] out of control”, the long running case of Snowden v Radio New Zealand Ltd ended after 23 interlocutory hearings, six applications for leave to appeal to the Court of Appeal, 70 formal minutes, orders and rulings leading up to the hearing, thousands of pages of exhibits and transcripts and a total of 47 sitting (court) days. According to the plaintiff, her legal costs were in excess of $3.5 million. With such vast sums of money at stake, an appeal seems likely.

While there is a lot of information in the 57 page judgment for employment lawyers to adsorb, two lessons stand out. First, Radio New Zealand’s case was greatly aided by the extensive efforts it had made to try to work in good faith with Ms Snowden to resolve her employment relationship problems (including five mediations). Ms Snowden’s stance throughout was described by the judge as “aggressive and uncompromising”. The Judge held that Radio New Zealand’s decision to terminate Ms Snowden’s employment on the grounds of irreconcilable breakdown in trust and confidence was an action which “a fair and reasonable employer would have taken in all the circumstances at the time”.

Employers in “intractable” disputes with employees should note that by bending over backwards to act reasonably and in good faith, Radio New Zealand was in a strong position. If Radio New Zealand had tried to be overly “clever” or relied on pedantic or technical excuses the outcome may have been very different. Acting in “good faith” is not a weakness, even if at the time it may seem like the employer’s good nature is being exploited.

The second lesson is that it is important to keep a sense of proportion in any employment relationship problem. Ms Snowden appears to have needed to be publicly vindicated, but at what cost? Sometimes a reality check or a costs/benefit analysis will be a useful tool in deciding how far to pursue an employment relationship problem. We suspect Ms Snowden could have found better things to spend $3.5 million on.

Anzac and Waitangi Day holidays falling on weekends now “Mondayised”

The Holidays “Formal Recognition of Waitangi Day and Anzac Day” Amendment Act 2013 came into force on 1 January 2014. In future, when Waitangi Day or Anzac Day fall on a weekend, the following Monday will be the official public holiday. The first occurrences of this are Anzac Day 2015 and Waitangi Day 2016.

FUTURE PREDICTIONS

Major overhaul in Health and Safety Reform Bill

The Health and Safety Reform Bill has had its first reading and has been referred to the Transport and Industrial Relations Committee, with a report due back on 13 September 2014. This Bill was described by Labour Minister Simon Bridges as the biggest reform of New Zealand’s workplace health and safety laws for 20 years. The Bill replaces the Health and Safety in Employment Act 1992 and amends a number of other statutes.

The Bill goes a long way towards addressing the health and safety issues identified in the “Pike River Mine” investigation, where it was hard to identify where responsibility for health and safety failings lay. Many of the proposed changes will give workplace management greater responsibility. A “person conducting a business or undertaking” will have a primary duty of care to ensure the health and safety of workers employed or engaged by the business.

The Bill establishes stronger penalties, and includes new enforcement tools, graduated offence categories and court powers. The Bill will allow inspectors to issue notices that businesses must comply with and gives regulators from WorkSafe the power to carry out remedial actions.

There is also a new category of personal grievance for employees who are subjected to adverse conduct for health and safety reasons. We will keep you updated on developments with this Bill.

Sick of social media

While the occasional act of social media misconduct still attracts media attention, by and large the modern digital environment is not resulting in the sort of problems some commentators warned of.

Indeed, it seems issues relating to social media and its use are increasingly being resolved by analogy to employment law concepts, especially in workplaces which have a Social Media Policy. If your business has yet to introduce a Social Media Policy, our analysis indicates that having a simple, intelligible policy may be better than having a detailed, overly technical approach. If you require further information about Social Media policies, please contact us.

The Employment Relations Amendment Bill

The Employment Relations Amendment Bill passed its second reading on 19 March 2014 and is on track to become law later this year. For details of what is contained in the Bill, please refer to our December and August 2013 editions of Crystal Ball.

Compliance Certificate offer extended

Our compliance certificate offer for checking compliance of employment agreements has been so successful, we are extending the time our introductory discount remains valid for until 30 June 2014. If you have received an invitation to use this service and want to take advantage of this offer (or if you haven’t received an invitation, but would like one) please contact us, or refer to our website: www.bartlettlaw.co.nz/toolkit/compliance-certificates.

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