Welcome to our Crystal Ball.
In this mid-winter edition we cover some recent cases, the Employment Relations Amendment Bill, alternative dispute resolution processes and our popular Snapshot Series© webinars. We also have some interesting facts – carefully positioned at the end of this email, to encourage you to read through to the end🙂.
Snapshot Series© webinars
As you may know, for the past 18 months we have been running free online webinars on topical employment issues. Most of these are in conjunction with Dr Simon Ryder-Lewis, Specialist Occupational Physician, Work Health Solutions Limited.
Our most recent webinars were on the topical subject of medicinal cannabis in the workplace.
Our next webinar is scheduled for mid August, and we will provide details in due course. In the meantime, we are always keen to receive suggestions and requests for future webinar discussions.
If you are interested in signing up for these free webinars and to date you have not received invitations, please email lawyer@btlaw.co.nz and we will make sure you are invited to future webinars.
Employment Relations Amendment Bill
On 17 June the government introduced its Employment Relations Amendment Bill. It amends the Employment Relations Act 2000. We have summarised the key provisions below.
Assuming the Bill progresses as per the usual process, it will have a first reading, referral to Select Committee, second reading, third reading, then get the Royal assent. The Minister has indicated an intention for this and other employment reforms to be enacted in 2025. (The other employment reforms include proposed changes to the Health and Safety in Employment Act.)
Throughout this process, the Bill is subject to public scrutiny, submissions and debate.
Key Points in the Bill
- New class of worker – specified contractor
The definition of “employee” in the Act will be changed to exclude “specified contractors”.
A worker will be a specified contractor when:
- the written agreement between the parties states the worker is an independent contractor; and
- the worker is not restricted from working for others; and
- the worker does not have to be available to work fixed days or times or the worker can subcontract; and
- the business cannot terminate the arrangement if the contractor does not accept an additional task.
The business hiring the worker must give the worker a reasonable opportunity to seek advice about the written agreement before signing it.
- Changes to personal grievance remedies where there is contributing behaviour by the employee
If the Employment Relations Authority or Employment Court finds that an employee’s behaviour was serious misconduct and they contributed to the situation that gave rise to their personal grievance, they will not be entitled to any remedies.
If they contributed to the situation that gave rise to their personal grievance, but their behaviour was not serious misconduct, they will not be eligible for reinstatement or compensation for humiliation, loss of dignity and injury to feelings or loss of benefits. Also, remedies can be reduced by up to 100%.
“Serious misconduct” is not defined in the Bill, so this is a potential point of contention between the parties.
- Changes to test of justification
Two changes are proposed.
The first is to the test of justification for dismissal or an action by an employer.
There will be a new element to consider. There are currently four elements in the test. The new one will be whether the employee obstructed the employer’s investigation or obstructed the employer in relation to any other relevant factor.
The second change concerns minor process defects.
The test of justification currently says the Authority or Court must not determine that a dismissal or action is unjustifiable solely because of minor process defects that did not result in the employee being treated unfairly.
It is proposed to change this by removing the reference to minor process defects. The Authority or Court would not be able to determine that a dismissal or action is unjustifiable
solely because of defects in the employer’s process if the defects did not result in the employee being treated unfairly.
- Wages and salary threshold for unjustified dismissal personal grievances
There will be a wages and salary threshold above which an employee will not be able to claim they have been unjustifiably dismissed or they have been unjustifiably disadvantaged where the disadvantage relates to their dismissal.
The proposed threshold is $180,000 per annum, to be updated annually. Wages and salary will exclude other forms of remuneration or variable payments, such as bonuses, allowances or productivity based payments.
Employers and employees can contract out of this, so they could contract back into unjustified dismissal protection or agree on their own terms and conditions relating to dismissals.
If an employee is on or above the wages or salary threshold, when deciding to terminate the employee’s employment, the employer will not be required to comply with some elements of the good faith provisions in the Act (in effect, good faith consultation): providing an employee with access to information relevant to the continuation of their employment and giving them the opportunity to comment on that information before their employment is terminated.
We note that these changes would apply to the termination of all affected employees, including termination due to redundancy.
- Collective agreements – revocation of 30-day rule
The Bill removes the “30-day rule”. That is the requirement for employers to employ non-union member employees whose roles would fall within the coverage of a relevant collective employment agreement (CEA) on terms and conditions based on that CEA for the first 30 days of their employment.
The default position would be shifted, so the employer and employee could agree on an individual employment agreement to take immediate effect, and the employee would be provided with a copy of the collective agreement and, if they agree, the employer would tell the union they had entered into an individual employment agreement with that employer. There would also be some procedural steps the new employer would have to comply with covering providing the employee with information about how to join the union etc.
Recent Cases
Inadequate bullying investigation
A large employer (Synlait, a dairy company) unjustifiably disadvantaged an employee in how it carried out its investigation into her bullying complaint. In the Employment Relations Authority she was awarded $12,000 compensation for hurt and humiliation.
Ms Li began working for Synlait as a process technician. After a couple of months on the job she accidentally bumped her knee and aggravated a previous injury. She was then unable to work, firstly on a full-time basis and then at all. Although she provided medical certificates, Synlait engaged in a process to obtain further information about the injury and her prognosis.
During her injury leave, Ms Li claimed her team leader bullied her during a discussion about an ACC recommendation that she increase her hours of work.
After receiving Ms Li’s complaint, Synlait asked its production manager (Mr Kirby) to conduct an internal investigation. Although Mr Kirby obtained an account of what had happened from the team leader, that account was not provided to Ms Li. Mr Kirby subsequently concluded that bullying had not occurred.
The Employment Relations Authority found that Synlait had reasonably raised its concerns about Ms Li’s fitness for work, and that its process in that respect was fair. However, as stated above, it also found that Ms Li had not been fairly involved in the bullying investigation and the investigator they used (Mr Kirby) was not sufficiently impartial.
The case illustrates the importance of following policies and carrying out a fair investigation, even when an employee may be absent from the workplace and other, parallel, processes are also being conducted.
WFH (working from home) pitfalls
A senior employee (Mr Petrie) claimed constructive dismissal after his employer refused to let him work remotely full-time and on a permanent basis.
When he had started work it had been made clear to him that employees were expected to be in the office at least three days a week. However, Mr Petrie then started working in a team with a more flexible WFH policy at a time when the employer was offering more flexible options due to Covid-19 conditions.
Mr Petrie then advised his employer that he had purchased a home in Whanganui, approximately three hours’ drive from his employer’s premises in Wellington. After some discussions, the employer confirmed that it would not be able to accommodate full-time WFH in the future and that he would have to be in the office at least three days a week. Mr Petrie resigned, claiming constructive dismissal.
The Employment Relations Authority found that the employer’s WFH arrangements were temporary and client-specific. It had therefore not breached its duties to Mr Petrie.
It is important for employers to have up-to-date and clear policies about remote working. Call us to discuss any concerns you may have.
Alternative Dispute Resolution Processes
Many employment relationship problems are best resolved not in the Employment Relations Authority or in the Employment Court, where someone else is making the final decisions, but through appropriate interaction between the parties themselves.
Parties in conflict tend not to communicate well or constructively and poor communication can cause disputes to occur or escalate. A trained expert can help open up and improve the quality of communication to assist the parties to hear and understand each other.
In our experience there are a number of non-adversarial processes that can be used effectively to either assist the parties to resolve the disputes themselves or to work with them to understand the situation they are in and learn how to best manage or address it.
Some of the processes used are facilitation, restorative justice, other forms of alternative dispute resolution, and conflict coaching.
We find that the specialist needs to be brought in at an early stage and that their ability to engage with the parties from that early stage can often be beneficial. The specialist’s assistance can be obtained quickly and discreetly.
We see many situations that would have benefited from a form of alternative dispute resolution but where for some reason this has not occurred. Employers and employees need to know that these alternative dispute resolution (ADR) processes are readily available to them. At Bartlett Law our special counsel, Carolyn Heaton, is a trained facilitator, mediator and conflict coach.
A brief description of some of the commonly used forms of alternative dispute resolution follows.
Facilitation can help where a team or group has become dysfunctional in some way. The facilitator usually speaks to the individuals first, separately and confidentially, and assesses whether a group discussion may be helpful.
Restorative justice is a process where the focus is on restoring relationships. It is like mediation and facilitation but is more focused on thinking about what has happened and why, in a neutral environment, and then identifying any problems so relationships can improve and be put back on track.
“Conflict coaching” means meeting with one or more of the people involved in the dispute, in confidence, to help them work out what their needs and interests are and what they want to achieve. If you are one of those people, we can help you to work out the best way to communicate with the other people to the dispute to help get you to a point where you can make decisions about whether, and how, you want to resolve the difficult issues or have difficult conversations.
These can be some of the most dynamic and effective ways for parties to achieve an acceptable and durable outcome. Internal or external investigations have their place, but in our experience they are not always the best way to deal with complaints and team dysfunction.
Our Special Counsel, Carolyn Heaton, can work with you on these forms of resolution. She has trained in ADR and specialised in it for many years. Carolyn is also available as an employment mediator throughout New Zealand.
Remember to keep employment agreements and policies up-to-date
Employers should regularly review their employment agreements for compliance with the relevant legislation.
They should also review their drug and alcohol policies to check they are fit for purpose, particularly now that medicinal cannabis is legal.
If you would like us to review your organisation’s employment agreements or policies and procedures, please contact Penelope or Carolyn at lawyer@btlaw.co.nz.
Interesting facts
- Did you know that your funny bone is not actually a bone? It is a very sensitive nerve. And hitting that nerve is not funny at all!
- Did you know that aprosexia is the inability to concentrate. Who would have thought?
- And finally … did you know that the blood in a famous shower scene in Hitchcock’s Psycho was in fact Hershey’s chocolate syrup? Imagine having to do retakes of that scene! What a mess that would be.
Regards,
Penelope Carolyn Andrea Sarah Lyn