Welcome to Bartlett Law’s Crystal Ball.  In this issue, we highlight some developments from 2016 and provide some reminders for employers and employees.  We have also included a special festive recipe and wish you all a very Merry Christmas!

Health and Safety at Work Act 2015

As we have highlighted in previous Crystal Balls, the Health and Safety at Work Act 2015 (HSWA) came into force on 4 April 2016.  Health and safety has remained in the media spotlight all year and employers and employees should now be familiar with the new concepts and terminology in the Act and be complying with the new requirements. All health and safety documents, including health and safety clauses in employment agreements, should also now be updated.

There have not been any cases under the Health and Safety at Work Act 2015 yet, but we will update you when there are any important developments.

Health and mental well-being just as important as physical safety

While much of the focus has been on physical safety under the HSWA, it is important to remember that HSWA also deals with health, including mental health. The HSWA requires employers to address employees’ mental health when ensuring safe workplaces.

Stress, bullying and harassment are examples of non-tangible workplace hazards that could affect an employee’s mental health.  Just like under the old Health and Safety in Employment Act, an employee can bring a claim if their employer has failed to appropriately manage or prevent workplace bullying.  Employers have a legal obligation to proactively recognise and stop workplace bullying and failure to do so could result in a conviction and fine under the HSWA.

Employees also have an obligation to keep themselves and others safe in the workplace and repeated bullying behaviour could be in breach of this obligation.

Employment Standards Legislation Act 2016

As we outlined in our previous Crystal Ball, the Employment Standards Legislation Act 2016 came into force on 1 April this year.  Employers should have updated their employment agreements for new employees to reflect these changes.  As a reminder, employers have until 1 April 2017 to update any permanent employees’ employment agreements to reflect the updated legislation.  We have noticed the most common changes are in relation to availability provisions and secondary employment (please see our previous Crystal Ball for more information on these points).

Hefty fines for non-compliance

The Labour Inspectorate continues to take strong action against employers who are not giving employees their minimum employment entitlements, like the minimum wage and holiday pay, or for not keeping proper wage records or having employment agreements.  We have noticed the fines and penalties have been hefty.

In a recent Employment Court case, the Court imposed $100,000 in penalties against two South Island liquor store and dairy owners, who had been found to have committed serious breaches of employment law. The breaches concerned failing to pay the minimum wage, holiday pay, statutory entitlements for working on a public holiday and failing to keep employment records.

Subsequently, a kebab shop in Rotorua was ordered by the Employment Relations Authority to pay a $40,000 penalty and $33,661 in arrears to an employee for its failure to pay the minimum wage, holiday pay and to keep accurate employment records, with the employee receiving half the penalty.

While these breaches are at the extreme end of the spectrum, the Labour Inspectorate has said it views all employment law breaches very seriously, regardless of the size of the business.  This is a useful reminder for employers to ensure that all employees have a written employment agreement, that employees are being paid at least the minimum wage, and that proper wage, time and leave records are kept for all employees.

Sunday trading

The Shop Trading Hours Act 1990 was amended on 29 August 2016 to enable territorial authorities (ie, councils) to decide if retailers in their districts can open on Easter Sunday. Territorial authorities can now create local policies to allow shop trading across their entire district or in limited areas on Easter Sunday.

However, the new legislation recognises that Easter Sunday is still a day of significance for many New Zealanders and employees have the right to refuse to work on Easter Sunday without having to give a reason for their refusal.  Under the new legislation, any provision in a shop employee’s employment agreement which requires them to work or be available to accept work on Easter Sunday will be unenforceable.

Employers who want employees to work on Easter Sunday must advise the employees in writing between four and eight weeks before Easter Sunday that they have the right to refuse to work.  Employees must also inform their employer in writing if they refuse to work on Easter Sunday.

No fault trial periods

No fault trial periods are still being challenged in the Employment Relations Authority and Employment Court. A recent Authority decision (Clark v Lighthouse ECE Ltd) held that the trial period in an employment agreement must specify the start date of the trial period.

In this case, the employment agreement set out a start date but the trial period clause itself did not expressly refer to or cross-reference that start date.  Because of this, the trial period clause was held to be invalid and Lighthouse was not able to rely on the trial period clause to prevent Ms Clark from raising a personal grievance in relation to her dismissal during the trial period.

This case is a timely reminder to employers to check no fault trial periods in their standard employment agreements to ensure that the start date for the trial period is clearly stated.  This can be by cross-reference to the actual employment commencement date.  It is not enough to simply state a trial period will apply.

Employment investigations – update on H v A Ltd

In our last Crystal Ball, we outlined the case of H v A Ltd which held that an investigation into an allegation of sexual harassment was not sufficiently comprehensive.  The employer appealed the decision and the Court of Appeal has overturned the Employment Court’s decision.

The Court of Appeal disagreed with the Employment Court’s analysis of a limited investigation and emphasised the statutory requirement for an employer investigating is to do what is fair and reasonable “in all the circumstances”.  The Court confirmed that employer decisions should not be subjected to “minute and pedantic scrutiny”, and that the Court must assess whether the employer’s decision was fair and reasonable in all the circumstances.

While employers can take heart from the Court of Appeal’s decision, which appears to take a more realistic approach to investigations, employers still need to be very careful when investigating any allegations, particularly as serious as sexual harassment, as their investigation and any subsequent decision will still be examined closely by the Courts if challenged.  Investigations remain a difficult area and, depending on the circumstances, it may be beneficial to engage an independent and experienced investigator.

Secret recordings by employees

As technology and phones become more advanced, most people now have access to a smartphone which is capable of highly sophisticated recording.  It is not surprising then that secret recordings by employees appear to be on the rise.

The Authority and courts have generally allowed secret recordings of meetings to be admitted as evidence where they are relevant to the matters in an employment dispute.  However, a recent Authority decision held that a secret recording made by an employee may be used against an employer in proceedings even where it relates to conversations between other employees and where the employee was not present.

In the case of Firman v Insyn Ltd Ms Firman made two secret recordings of:

  1. a meeting with her employer where she was told about a disciplinary process and potential suspension; and
  2. a conversation between other staff members while she was not present, recorded by leaving her cell phone in the room, and she attempted to use it as evidence that other staff were gossiping about her and bullying her.

The Authority said that “recording others secretly when the person recording is not participating in a meeting or conversation with them is generally not admissible”.  The Authority confirmed that this is not acting in good faith and that all individuals are entitled to their privacy.  Despite this, the Authority allowed this recording as evidence, on the basis that the employer became aware of the recording shortly after it had been made, and that it was to prove gossiping was continuing.  In addition, the employer raised with other staff at or about that time that they had been recorded, and there was a lot of other evidence before the Authority about staff conversations being recorded on the particular date.

This case reminds us that workplace meetings or discussions can be recorded by either party and later used as evidence.  It is often prudent for employers to openly record disciplinary meetings so there is an accurate record of what is said.  Employees need to be careful before making a secret recording; it is usually best to seek all attendees’ permission before recording a meeting, rather than making a covert recording.

Employers may wish to have a policy in place prohibiting secret recordings by employees without the employer’s express permission, as this would remove any doubt.

Christmas holiday period

Bartlett Law will close for the year at 5 pm on Thursday 22 December.  We will reopen on Wednesday 11 January 2017.  If you need urgent advice over the holidays Penelope and Charlotte can be contacted by email:  or .

Christmas Recipe

You can never have too many good Christmas recipes and we would love to share this one with you.

PROBABLY THE BEST YOU HAVE EVER HAD!

Christmas Cake

Ingredients:

2 cups flour

1 stick butter

1 cup of water

1 tsp baking soda

1 cup of sugar

1 tsp salt

1 cup of brown sugar

Lemon juice

4 large eggs

Nuts

1 bottle tequila

2 cups of dried fruit

 

Sample the tequila to check quality.  Take a large bowl, check the tequila again to be sure it is of the highest quality, pour one level cup and drink.  Repeat.

Turn on the electric mixer.  Beat one cup of butter in a large fluffy bowl.  Add one teaspoon of sugar.

Beat again.  At this point it’s best to make sure the tequila is still OK.  Try another cup…just in case.  Turn off the mixerer thingy.  Break two eggs and add to the bowl and chuck in the cup of dried fruit.

Pick the frigging fruit up off floor.  Mix on the turner.  If the fried druit gets stuck in the beaterers just pry it loose with a drewscriver.  Sample the tequila to check for tonsisticity.

Next, sift two cups of salt.  Or something.  Check the tequila.  Now shift the lemon juice and strain your nuts.  Add one table.  Add a spoon of sugar, or somefink.  Whatever you can find.

Greash the oven.  Turn the cake tin 360 degrees and try not to fall over.  Don’t forget to beat off the turner.  Finally, throw the bowl through the window.  Finish the tequila and wipe counter with the cat.

Bingle Jell !

Merry Christmas from us all at Bartlett Law!

Penelope, Phil, Charlotte, Andrea, Suzanne and Sarah

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