The months of June and July have been busy for employment institutions and developments in employment law, including:
Matariki a Public Holiday
New Zealand observed a new public/statutory holiday – Matariki – for the first time on Friday 24 June 2022.
Gig worker determined employee
The Employment Relations Authority determined in Wang v Hungrypanda (NZ) Limited that a takeaway delivery driver working via an online app (similar to UberEats, Delivereasy and Food Ninja) was in fact an employee, not a contractor. Although contractor vs employee disputes arise all the time and are considered on a case-by-case basis on their individual facts, it is possible more delivery drivers may now come forward and argue they are in fact employees. This seems to be following the trends of Uber (and other drivers) that utilise an online app to facilitate the provision of their services.
Parental leave payments increased
Parental leave payments increased by 6.33% from 1 July 2022, increasing the maximum weekly rate to $661.12 gross per week.
MOH revised re-infection advice
The Ministry of Health updated its re-infection advice, including that there is a risk of reinfection as early as 30 days after the individual was last infected with the covid-19 virus. This has given rise to much concern. For the business community, because of the cost of disruption illness is causing business this winter. For employees, although sick leave entitlements were recently increased from 5 to 10 days per annum, it is quite possible that a lot of employees will get sick two or three times per year, and this may not provide sufficient paid cover.
Bakery owner to pay $158,000 for breaching minimum entitlement provisions
The Employment Relations Authority ordered a bakery owner to pay a whopping $158,000 in penalties after breaching minimum entitlement provisions contained within the Employment Relations Act 2000, the Minimum Wage Act 1983 and the Holidays Act 2003.
Hokitika bar in hot water after offensive job ad
A Hokitika bar and café got in strife (understandably) for releasing a job advertisement requiring the applicant to have “Double D Breasts” for the job. See post.
Supreme Court - contract law test
The Supreme Court released its decision in TUV v Chief of New Zealand Defence Force. The Supreme Court considered whether a settlement agreement was enforceable where one party was affected by mental incapacity when they entered into the agreement, the other party had no knowledge of that incapacity, and the agreement was signed off by an authorised mediator. Essentially the Court applied the contract law test, finding that the settlement agreement was enforceable because the other party was not aware the employee lacked capacity when entering into the agreement.
Employment Court grants non-publication order
The Employment Court released its decision in JKL v Stirling Anderson Ltd. In this case, the employee took a case in the Authority, was unsuccessful, and then later sought to apply for non-publication of her personal details. The Authority determined that it could not recall its earlier determination and declined to grant a non-publication order. The Employment Court overturned the Authority’s decision, finding that the Authority did not need to recall its decision to make a non-publication order and granted the employee the non-publication order. This was on the basis that if non-publication were not granted there was a material risk publication would pose a risk to the employee’s safety and potentially have a negative impact on their mental health and future employment prospects. The case follows a growing trend of the Employment Court more readily granting non-publications when sought. There is growing emphasis on the severe and adverse impact publication has on a litigant’s future employment prospects (because prospective employers and recruitment agents often search the Authority and the Court’s online database of determinations and decisions) and well-being, regardless of their success.
Employment agreements can't require employee be available 24/7
In LYE v ISO Ltd the Employment Relations Authority held that the availability provisions in the employee’s contract breached s 68D of the Employment Relations Act 2000 because it did not specify guaranteed hours of work as well as the period in which the employees were required to be available above those guaranteed hours (the contract simply stated the employees had to be available 24/7). The Employment Court upheld the Authority’s decision. This is an example of why it is so important to consult an employment lawyer before finalising an employment agreement. Although the statutory requirements for a valid availability provision are clear, it is often missed that the contract must state guaranteed hours in addition to clarifying the availability periods. Stating the employee must be available 24/7 will not comply.
Invalid trial periods
In Farrand Orchards Ltd v Tane the Employment Court upheld the Employment Relations Authority’s determination in finding that the employee had been unlawfully dismissed because the employer relied on an invalid trial period. The parties, in that case, disagreed that a trial period was discussed prior to its inclusion in the written employment agreement which the employee signed after he commenced work (but did not notice the trial provision having been included). Ultimately the employer was unable to prove that a trial period was discussed and although the agreement contained a trial provision, the fact the employee did not sign the agreement until after he started working proved to be fatal. There were a number of other issues with the trial provision. This case is an important reminder to consult an employment lawyer when finalising an employment contract, particularly if the employer wishes to include a trial provision. Often a final review can be completed within half an hour and at a minimal cost. Such a review can, and often will, result in the employer saving money in the long term by avoiding costly employment disputes.
Employees terminated for not being vaccinated, raised personal grievances
In VMR v Aviation Security Service Division of Civil Aviation Authority, the Court granted four former aviation security officers leave to remove their claims in the Authority to the Employment Court. The four former employees of the Civil Aviation Authority had their employment terminated because they had not been vaccinated against Covid-19. In granting the application the Employment Court determined the claims involved a question of law. Watch this space because the Employment Court’s subsequent substantive decision may have an impact on those employees that have been dismissed for reason of non-vaccination, have raised a personal grievance, but haven’t yet pursued their grievance in the Employment Relations Authority. The Court’s decision may provide helpful guidance to these categories of dismissed employees regarding the strength and likelihood of success if they did pursue their claims.
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