Employment Matters

Reducing Risk and Improving Employment Relations

Presenter

Rebecca McBeath

General Overview

• Introduction of the concept of an “employment relationship”

• Focus on interactions between employer and employee

• The illusive concept of “Good Faith”

• Notes and aids

Employment Matters - Seminars

• Individual Employment Matters– Nature of Employment– IEAs– Offering employment– Negotiating terms and conditions

• Collective Agreement Matters– Interim IEAs– After the first 30 days– Resignation from the Union

Employment Matters - Seminars

• Disciplinary Matters– The Justification Test– Misconduct

• Performance Matters• Termination Matters

– Restructuring and Redundancy– Medical Absence

• The Holidays Act 2003 Matters– What does it all mean?

Individual Employment Matters

• General IEA terms and conditions

• Understanding the nature of employment and the relevant IEA– Casual– Permanent - Part-time / full-time– Fixed Term

• Offer of employment

• Negotiation

Generic IEA Terms

• Section 65 of the ERA– In writing– Names of parties– Description of work– Where work will be performed– Times employee will work– Wages or salary payable– Explanation of 90 day period to raise a PG– Anything else agreed

• Probationary arrangements– In writing– Unjustified dismissal laws apply

The Nature of Employment

• Casual Employment– employment on a basis that is intermittent or irregular.– “as required” basis– no expectation of continued employment

• Permanent Employment– on-going / continued– No distinction between full and part-time hours

• Fixed Term Employment– Section 66 of the Employment Relations Act 2000

Casual Employment

• Look at IEA

Permanent Employment

• Look at IEA

Fixed Term Employment

• Look at IEA

Offering Employment Matters

• Clear and concise• Basic terms and conditions• Offer conditional

– References– Medical / Police checks– Licence requirements

• Acceptance requirements– Sign IEA

Negotiation Matters

• Provide copy of intended IEA• Advise entitlement to individual advice• Provide reasonable opportunity to get advice• Consider and respond to employee issues

– Bargaining in ‘good faith’ – section 60A of the ERA

• Failure to comply– Penalty of $5000.00 or $10,000.00– IEA remains valid

Collective Agreement Matters

• Interim IEAs– Obligations at offer of employment stage– Negotiating additional terms and conditions

• After the first 30 days’– To join the Union or not to join the Union

• Resigning / Joining the Union– Handling the transfer– Dealing with employment agreements

Interim IEA Matters

• What is an ‘interim IEA’?– Terms and conditions of applicable CEA– Any additional terms and conditions agreed– First 30 days’ of employment– What if 2 applicable CEAs?

• Application– New employees only – Not a member of the Union– CEA exists and covers work to be done by new

employee

Interim IEA Matters

• Employer Obligations– Information to employee

• CEA exists and covers work to be done• Employee may join union and if so will be bound

by CEA• Union contact information• Copy of CEA• That first 30 days will be covered by CEA + any

additional terms agreed

– Inform union about new employee

The End of the 30 days’ Matters

• No term or condition automatically alters after 30 day period to be inconsistent with CEA

• To join the Union or not to join the Union– Interim IEA becomes CEA – Interim IEA becomes IEA

• After 30 days’ employee and employer may vary the interim IEA– Bargain in good faith

Resigning / Joining the Union Matters

• 30 day period has expired

• Employee resigns from Union– CEA terms and conditions will apply as IEA– Negotiation to vary terms and conditions in

good faith

• Employee joins Union– CEA applies – NB: section 56 and 61 of ERA

Discipline Matters

• Misconduct– Punish or deter

• Performance– Assist improvement

• Medical Incapacity– Frustration of employment

• Redundancy– Improving business efficiencies

Substantive Justification

• Before taking any action, you must have substantive justification for doing so

• Not black and white – circumstances vary• Test under the Employment Relations Act 2000

(“ERA”):– “…the question of whether a dismissal or an action was justifiable must be

determined on an objective basis, by considering whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer would have done in the circumstances at the time of the dismissal”

– Used to be “could” have done

• Outcome based on a fair and reasonable process

Procedural Fairness

• Different processes reflecting philosophies• Principles of Natural Justice

– Inform employee of allegations/concerns/proposal– Real opportunity to be heard

• Information gathering/investigation• Interview• Determination• Best practice standards

Air New Zealand v Hudson

• Mrs. Hudson was dismissed from Air NZ on 23 December 2004 for serious misconduct– Pushing a co-worker;– Customer complaints re: service and behaviour

• Decision:– Court can substitute its view for the employer’s view;– Had Air NZ followed a fair process, dismissal would

have been justified

• Suggested process guidelines

Performance Matters

• Performance Management System– Look at existing system

• When and why to Discipline• Application of ‘Substantive Justification’

Test– Process– Action taken

• Assistance and Training

Disciplining and Terminating Employees

• Performance– Philosophy: to improve

• Misconduct– Philosophy: to punish or deter

• Redundancy– Philosophy: to improve business efficiency

• Medical Incapacity– Frustration of employment

Process Guidelines

• Specifically designed for small to medium sized businesses

• Explanation of each of the circumstances where need to discipline and/or exit

• Detailed step by step guidelines• Template letters to go to employees• Minimises legal and management cost • $3000.00 + GST

– Softcopy; and/or– Hardcopy

Medical Incapacity matters

• Initial Management of Illness / Injury– Communication– assistance

• Gathering information– Medical certificates– Medical assessments

• Commencing management process– Letter– meeting

• When is “enough, enough”?