by Anna Neil | Sep 5, 2014 | Property, Commercial and Personal Services |
The recent amendments to the Employment Relations Act 2000 extend the 90 Day Trial Period to all Employers (previously it was limited to those Employers with 19 Employees or less). Key points regarding the 90 day trial period: 1. Basic principle An Employer can dismiss a new Employee within the first 90 days of employment without risk of a personal grievance as a result of that dismissal if the trial period applies. There can be disqualifying behaviour, and it is unlikely that an Employer can ignore all of the usual obligations. 2. Exceptions Although a personal grievance may not be brought simply as a result of dismissal, it does not exclude personal grievances for: discrimination for reasons of race, religion, sex, union membership, age or the like, or unjustified actions prejudicing the Employee during the trial period 3. In Employment Agreement The 90 day trial period will only apply if the Employment Agreement includes a reference to the trial period. In Smith v Stokes Valley Pharmacy (2009) Ltd [2010] the Chief Judge of the Employment Court found that the Employment Agreement containing the trial period must be signed prior to the commencement date of the Employee. A recent Authority decision illustrates that both parties should sign the agreement prior to the commencement date. 4. New Employees only The trial period provisions only apply to Employees new to the Employer (so does not include returning or existing Employees switching roles). In the Stokes Valley Pharmacy case, because the Employee signed the Employment Agreement the day after she started work she was not regarded as a new Employee. 5. Notice An Employer must give notice of termination within...
by Anna Neil | Sep 5, 2014 | Property, Commercial and Personal Services |
Maintaining happy and healthy workplace relationships may not be something that immediately springs to mind when considering your obligations as an employer. The recent case of Johnston v Board of Trustees of Southern Regional Health School, however, makes clear that allowing workplace disputes to remain unresolved may result in a successful claim for unjustified disadvantage. What happened in that case? Ms Johnston began working at the Southern Regional Health School as an Assistant Principal, and was promoted to Deputy Principal shortly thereafter. Some years later a desire to spend more time with her family led to a renegotiation of her employment contract. She reverted to Assistant Principal, reduced her hours and was permitted to work those hours flexibly and sometimes from home. About a year later, Ms Atchison (Ms Johnston’s colleague) voiced dissatisfaction to the Deputy Principal. Ms Atchison felt that Ms Johnston was unreliable, dishonest and “had a lack of clarity around working responsibilities”. It seems that Ms Johnston was seen as “shirking”. Ms Atchison’s unhappiness increased, and eventually resulted in a written complaint to the employer. The School did not deal with that complaint, but instead incorporated it into another investigation involving a different staff member before it was “put on hold”. Over the coming months Ms Atchison’s dissatisfaction continued, and she made another written complaint about Ms Johnston. This time the complaint was investigated by the School, but unfortunately not resolved. The Employment Relations Authority found that the School had unjustifiably disadvantaged Ms Johnston. How was the employer at fault? The Authority recorded that the “relationship [between Ms Johnston and Ms Atchison] was destroyed, the workplace...
by Anna Neil | Sep 5, 2014 | Property, Commercial and Personal Services |
While there is no definition of what constitutes a “redundancy” in the current legislation, it covers the situation where, for instance: An employee’s employment is terminated because the position filled by the employee is, or will become, surplus to the needs of the employer, or Where the position filled by the employee has been significantly altered. It is not a redundancy where employees are simply redeployed or where the name of a position changes, but where employees will perform substantially similar duties. How do you make someone redundant? Redundancy is a termination of employment and as with other terminations, an employee may bring a personal grievance claiming unjustified dismissal. It follows that redundancies must be for genuine reasons, and need to be carried out in a procedurally fair manner (i.e. involving consultation, notice etc.). The test in the current legislation is: “Whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred” In terms of genuineness, the Courts have interpreted this as meaning: The focus must be on the position and not the employee occupying the position, Employers must do more than simply claim that it is a genuine business decision, Financial justifications must exist and cannot be flawed, Where there are genuine business reasons but also underlying personality or performance issues, it must be demonstrated that the redundancy was genuine (e.g. by paper trail demonstrating consideration of reorganisation), The normal procedural steps involved in a dismissal should also be taken. For instance: Clauses in the employment agreement (if...
by Anna Neil | Sep 2, 2014 | BvonD News |
BvonD is again supporting the Wildflower Sculpture Exhibition which is run in conjunction with the Hospice Holly Trail, Wednesday 5 November – Sunday 9 November 2014. Organised by Julie Russell, a BvonD client, in 2008, 2010 and 2012 around 10,000 visitors have been welcomed to Round Pond Garden to view and purchase works from Hawke’s Bay and New Zealand artists with $101,000 donated to Cranford Hospice as a result of these exhibitions – a great cause and a hugely successful event! BvonD is proud to support this event again and encourages you to visit their website to check out the finer details for what is planned for this...
