Easter is nearly upon us and it seems to be the topic of conversation, especially since many employees are turning it into a ten day holiday. Before you all plan the annual Easter egg treasure hunt it is important to make sure you are aware of what employees are entitled to in respect of the Easter and Anzac Day public holidays.

Observing Easter and Anzac
Generally speaking Easter and Anzac public holidays are observed on the days they fall:

Good Friday falls on and is observed on Friday 18 April 2014;
Easter Monday falls on and is observed on Monday 21 April 2014; and
Anzac Day falls on and is observed on Friday 25 April 2014.

Transferring public holidays
Since 1 April 2011 employers and employees can agree to transfer the observance of public holidays to another working day if a written agreement identifies which public holiday is being transferred and the new calendar date it is being transferred to. But the new date can’t be another public holiday and it must be a normal working day for the employee. For example, if an employee normally works Fridays, you could agree to transfer Anzac Day to the following Friday 2 May 2014.

In any lawful exchange, entitlements transfer fully to the new day. But an employer can’t do it solely to avoid obligations or if it reduces the total number of paid public holidays an employee otherwise gets. If all that swapping seems a bit much – an employer can promulgate a policy prohibiting exchanges.

Anniversary Day(s)
Increasingly we are seeing clients choosing a different day on which to observe Anniversary Day.  The extent to which an employer can do this depends on whether they have agreed to this practice in writing with their employees (i.e. transferring the public holiday by agreement), any evidence of local practice and what province(s) the employer operates their business in.

Employers could observe Anniversary Day on Easter Tuesday if past practice supports this or agreed in writing with staff.  A good idea if you would like to holiday longer!

Payments
Employers may have to pay staff even if they don’t work. Using this Easter as an example, an employee who normally works on a Monday will be entitled to their normal pay for Easter Monday even if they don’t work. But if they do work, they get their normal pay, plus half that amount again, for the hours they actually work. They also get a day’s alternative holiday (commonly called a day in lieu) to take later on.

An employee who doesn’t normally work on a Monday will only become entitled to be paid if they actually work. Then they get their normal pay, plus half that amount again, for hours they actually work.

Normal pay means the employee’s relevant or average daily pay for the public holiday. Relevant daily pay means the amount of pay an employee would have received had they worked. It includes regular payments like commission and overtime rates if the employee would have received them had they worked. So if an employee normally works and is paid for 10 hours on a Monday – this is what they should be paid for.

If an employee’s daily pay varies within the pay period relating to the public holiday (or if it’s not possible or practicable to calculate the relevant daily pay), then an employer can use a daily average of the employee’s gross earnings for the previous 52 calendar weeks.

Would or wouldn’t
Not sure if your staff would‘ve worked? Try to reach agreement after considering the employment agreement and work patterns. It doesn’t matter whether an employee is casual, fixed term or permanent – always ask whether “but for” the day being a public holiday, the employee would have worked.

Knowledge is key
Whether you will or won’t work on the public holidays this April, make sure you know when and what your employees are entitled to. Some staff won’t be entitled to anything but you need to know why not and answer any questions in a way that you and they understand. Paying properly for public holidays this April beats paying penalties if you don’t.

Disclaimer:  We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations.  Please seek guidance from your employment lawyer for any questions specific to your workplace.
.

Employers need to be very careful about carrying out a work trial before offering employment.

The concept of potential new employees undergoing a ‘tester’ or performing tasks which will be part of their work duties is a commonly used practice. However recent case law indicates that if the person is carrying out any work that provides benefit to you as the employer – then tread carefully as it can cross the line and they can be considered an employee, and therefore must be treated lawfully as an employee.

If it is part of the recruitment phase and you ask them to serve a few customers or cup-up a few cows, make sure that it is clearly stated and that they understand it is still part of the recruitment process and the position is not definitely theirs. Our advice … don’t take the risk.

You can’t simply “see how they go” for a few days, then if you decide they are not suitable – advise them that the position is not theirs. Serious repercussions can come of this as they are effectively in a position of employment and could raise a grievance based on unjustified dismissal.

Carrying out robust recruitment practices will reduce the need to take the risk with these work trials. When recruiting create a list of appropriate questions to ask the job applicant, make use of an application form, conduct thorough interviews, and always carry out reference checking with previous employers!

Also a reminder – the 90 day trial period is only enforceable if the employee has signed their employment agreement prior to starting work. In addition you must give your new employee sufficient time to seek independent legal advice on their new employment agreement (we recommend 2-3 days) before signing.

If you have any questions or queries surrounding this area or any other employment matters – get in touch, we are only a call or an email away.

The Employment Court had to decide in Salad Bowl Ltd v Howe-Thornley 2013 EmpC 152 whether a potential employee who completed a 3 hour trial should be considered employed by the business.
FACTS OF THE CASE:
Ms Howe-Thornley applied for a job with the Salad Bowl Limited.  Following an interview she was to serve a 3 hour work trial to see if she could multi-task efficiently. After her work trial the till was short by $50.  Ms Westphal, owner of the Salad Bowl, thought a $50 note that she saw earlier in the till was no longer there. Ms Westphal rung Ms Howe-Thornley’s referees and asked about her general honesty as an employee.  The referees’ answer caused her concern.  Ms Westphal texted Ms Howe-Thornley that there was no job due to the money missing from the till.
EMPLOYMENT COURTS DECISION:
The line may be crossed from a person being a  potential employee to an employee, and an employment relationship may arise, when the employer gains an economic or business benefit from the work trial.  Though the business benefit to the employer may not be optimal  due to Ms Howe-Thornley needing to be shown what to do, she nevertheless was performing work and contributing to its business.
Was the work trial “employment”?
The Court looked at the definition of an “employee” which includes “a person intending to work” and a person who has been offered, and accepted, work as an employee. The evidence established that The Salad Bowl had intended to pay Ms Howe-Thornley for her work during the trial. The Court found that she had been offered and accepted work as an employee, even if it was for a short period and that she performed work and contributed to The Salad Bowl’s business.
Can the Salad Bowl argue that the trial was fixed term employment?
Ms Westphal offered Ms Howe-Thornley employment of a fixed duration which would end when she communicated the Salad Bowl’s decision whether to engage her permanently. The Salad Bowl breached section 66 of the Act as the reason for the fixed term was not genuine. An employer may not use a fixed term agreement if it is for the purpose of establishing the suitability of the employee for permanent employment.   The consequence of breaching section 66 is that the Salad Bowl was not entitled to terminate the employment in reliance upon the expiry of the fixed term and the employment is deemed permanent.
If it’s not fixed term employment is it conditional employment?
The Court said even if Ms Howe-Thornley’s employment was conditional on satisfactory completion of the trial and a reference check,  the Salad Bowl still can not avoid liability for unjustified dismissal solely upon its conclusion that she failed to satisfy either or both conditions. The Salad Bowl, in good faith, must  have at least raised its suspicions or concerns with her and given her an opportunity to address these before dismissing her summarily in reliance upon them.  It was not entitled, in the process of fulfilling those conditions, to disadvantage or dismiss her unjustifiably.

HELD:     Ms Howe-Thornley was an employee of the Salad Bowl and was unjustifiably dismissed.  She was awarded $1,215 for lost wages and $5000 compensation.
EFFECT:  Pre-employment trial periods, to avoid risk,  should be  undertaken  under a valid  trial  period that is compliant with section 67A and 67B of the Act. This will especially be the  case where the business receives economic benefits from the candidates trial.

By Lucia Vincent

Some say that the only certainty in life is change.  It seems that employment law too is subject to change each year and 2013 promises change in the areas of public holidays, minimum wage and collective bargaining.  In this article we summarise some of they key changes forecast to impact on employers and their payrolls.

Part Payments for Partial Strikes

Although we are yet to see a draft of the proposed Bill, most are aware of the recommendations made by the Labour Minister to change the collective bargaining environment by amending the Employment Relations Act 2000 (Act).1   One change would alter the nature and process of striking, suspending and paying employees.2

Currently the Act does not differentiate between partial and total strikes.  The definition of strike includes the act of a number of employees in discontinuing their work, “whether wholly or partially, or in reducing the normal performance of it,”3   with a common purpose (often in support of claims made on their behalf during collective bargaining).

We can easily identify when an employee stops work altogether (a total strike), but it becomes more difficult to determine when and whether an employee has stopped doing only some things, or has deliberately reduced their output (commonly called “working to rule”) – a partial strike.

In Postal Workers Association v New Zealand Post Ltd (2007) 8 NZELC 98, 918 (Postie case) the Employment Relations Authority dealt with a case where the Posties reposted mail that they ought to have delivered.  When New Zealand Post (NZP) discovered the reposting, they suspended and refused to pay the Posties for the day’s work, even though they had delivered some mail and attended work.  The parties accepted that the Posties had performed a partial strike.  But the Union argued that NZP could not backdate the suspension notice to include the period prior to the notice being issued.  When it came to partial strikes, unless NZP had suspended the Posties, the Posties ought to have been paid.  The Authority agreed.  An employer surprised by a partial strike can either suspend and refuse to pay moving forward or put up with it and pay up in full.  An employer cannot attempt to retrospectively suspend, or partially pay employees on a partial strike.  So NZP had to pay for the full period of the partial strike up until it issued valid suspension notices.

In Thompson v Norske Skog Tasman Ltd [2011] NZERA Auckland 291 the Authority referred to the Postie case and determined that although a partial strike had occurred, Norske Skog Tasman Ltd could not lawfully deduct what it considered the proportionate amount of wages.

In the Postie case the Authority described partial strikes as being permitted by the Act even if it made an employer “…vulnerable to a sudden strike amounting to surprise or ‘guerrilla’ tactics” (46).  Perhaps in response to this the Minster recommended among other things:

Introducing a requirement for unions to be required to give employers advance notice of any strike action and not just in relation to essential services.  The notice would need to include the nature, location, start date and a list of employees’ party to the proposed strike.  This would enable an employer to accurately assess what work is (or is not) being undertaken.  An inadequate strike notice would make any subsequent strike unlawful.
Allowing an employer to calculate and deduct proportionate pay for employees involved in partial strikes.  An employer would need to outline in writing the deduction intended based on a fair assessment of the work, time and pay apportioned to non performance.  An employer could then recover any overpayments within a set timeframe and after following a specific notification process.
If parties cannot agree on the amount of the pay reduction proportionate to the strike action taken, then parties can request mediation assistance or if that is unsuccessful, a determination from the Authority.

Although we are yet to see the proposed law, we anticipate that after an initial settling in period, the changes would bring more clarity to this area of law.  Payroll practitioners will need to communicate with clients closely to ensure that the employer is complying with the process for part payments in partial strike situations.

April and May Minimum Wage Changes

Each April employers are faced with changes to the minimum wage.  This year the adult minimum wage increases to $13.75 and training and new entrant wage to $11 (80% of the adult minimum wage).

Employers ought to also check that they have increased, where applicable, their compulsory employer contributions (CEC) towards eligible employee’s KiwiSaver schemes from 2% to 3% from 1 April 2013.  Don’t forget that unless you have previously agreed in writing and in good faith with an employee that their total remuneration package includes any increase in the CEC, the base salary or wage of an employee cannot be reduced to account for the increase.  Any CEC cannot be taken out of a wage sitting at the level of the minimum wage either.

Labour Minister Simon Bridges welcomed the positive recommendation from the Transport and Industrial Relations Committee to pass the Minimum Wage (Starting Out Wage) Amendment Bill (Bill).  The Bill would amend the Minimum Wage Act 1983 to replace the current new-entrant scheme with a starting out from 1 May 2013.

Currently someone aged 16 or 17 can be paid 80% of the adult minimum wage until they have completed 200 hours or 3 months with one or more employers and/or supervises or trains other workers.

The Bill would allow someone aged between 16 and 19 and who is not involved in supervising or training other workers, to be paid not less than 80% of the adult minimum wage (starting out wage).  But an employer can only pay the starting out wage for the period that the employee meets one or more of the following criteria – that the employee:
Received a social security benefit for at least 6 months (such as the unemployment benefit);
Worked continuously for 6 months or less with one employer; and/or
Undergone training, instruction or examination with a view to becoming qualified in the role.

The training rate (80% of the adult minimum wage) would continue to apply if the employee is aged 20 or over, does not supervise or train others, and is undergoing training such as an apprenticeship that met the criteria.

Mondayising More

Many reports on the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Bill (Holidays Bill) reflect the view that ensuring more Kiwis enjoy every public holiday is a good thing for employees and their families.  But we can’t forget the added cost for employers.

The Holidays Bill, brought by the Honourable Dr David Clark, would amend the Holidays Act 2003 from 1 January 2014 so that both Waitangi Day and ANZAC Day would be observed on the following Monday if they fell during a weekend that the employee would not normally work.

Currently, if either Waitangi Day or ANZAC Day falls during a weekend, we observe the public holiday on the calendar day that it falls.  No “Mondayisation” occurs whereby we observe and transfer all entitlements for the public holiday on the following Monday.  This really only matters for those who work from Monday to Friday and feel like they miss out on the benefit of a public holiday or two when these days fall during a weekend.

If the Holidays Bill passes into law as it is expected to (it passed its second reading narrowly in March), the full impact will only be felt as often as these public holidays fall on a weekend.  It will become even more important to keep an eye on when public holidays fall for each employee and their entitlements to average or relevant daily pay, time and a half and alterative holidays.

As with all employment law changes, it pays to prepare.  Ensuring that employees are aware of and paid correctly when changes come into force not only keeps you on the right side of the law, but will enhance workplace relationships.  If you are unsure, seek advice.

1 “Employment Relations Amendment Bill 2012:  Paper One – Collective Bargaining and Flexible Working Arrangements,” Office of the Minister of Labour, Cabinet Economic Growth and Infrastructure Committee, 3 May 2012
2 The paper recommends “allowing proportionate pay reductions as a response to partial strikes” (4(d)) by creating “a notification requirement for all strikes and provides a method for employers to calculate a proportionate pay reduction for partial strikes” (22).
3 Section 81(1)(a)(i), Employment Relations Act 2000

Disclaimer

We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek guidance from your employment lawyer for any questions specific to your workplace.

First published in Pay And You (PAY) – Issue 3, April 2013
http://www.nzppa.co.nz/magazine/03/

All employees are required to pay their staff at least minimum wage, currently $13.75 per hour.  A Stratford farm owner has been ordered to pay his former employee $6,473.77 for failing to meet this obligation.
Facts:
Mr Almao was employed as a Farm Assistant by Mr and Mrs Whyte.  He worked for the Whytes between November 2010 and October 2012.  Mr Almao started on a salary of $30,000 per annum.  In April 2010 his salary increased to $32,000 per annum.  During the dry season (May – July) Mr Almao would work between 38-44 hours per week.  At all other times he would work between 49-60 hours per week.
Labour Inspector
Mr Almao lodged a complaint with the Ministry of Business, Innovation and Employment concerning his rate of pay.  Ms Feeny, Labour Inspector, found the Whytes had not maintained accurate wage, time and leave records and had failed to pay at least the minimum wage.  The Whytes were required to pay Mr Almao $6,473.77 in wage arrears.
Employment Relations Authority
Mr Whyte objected to Ms Feeny’s conclusions.  He put forward that weekly wages paid under the minimum wage during busy periods should be offset against wages during the dry season above the minimum wage ie., the Whytes implemented an averaging formula across the whole year.
The Authority agreed with Ms Feeny’s calculation and rejected the Whyte’s averaging approach.  Mr Almao was paid in equal weekly instalments.  The Authority therefore compared the hours worked in any one week to that weekly salary payment.  Using this method the Authority calculated that when Mr Almao worked over 49 hours in a week, his weekly salary payment was below minimum rate.  It concluded that only 42% of his employment met the minimum rate.

HELD:  Employer cannot average out salary payments made for weeks requiring less work against weeks where hours worked are below the minimum rates.
EFFECT:  If an employee is working 60 hours per week, they must receive at least $825 (gross) for that week.  That is $13.75 per hour worked.  If an employer fails to pay the minimum rate for each pay period worked, they will be required to ‘top up’ the employee’s pay.

Farmers in particular should be aware of the fluctuating hours due to seasonal variation and ensure the employees are receiving the minimum rate for every pay period.

We would also recommend that employers keep accurate records of when someone works including starting and finishing times,  breaks, any holidays or leave worked or taken, and all payments made.  This will ensure employers can prove when an employee worked and what they were paid for in case it is later challenged.

Get used to employment law changing.  Following consultation and over 13,000 submissions, proposed amendments to the Employment Relations Act 2000 (Act) aim to strike a balance by being fair to staff, unions and employers.  The following proposed changes are some likely to impact our employment relationships most.

Breaking Point
We all need breaks.  But the currently rigid regime (two paid ten minute breaks and one unpaid half hour break every eight hours) seems to struggle to work well in workplaces.  We frequently find parties ditch the legislated minimum in favour of what works practically – often longer breaks that better suit the employer’s working day.  Proposed changes favour mutual agreement.  Failing agreement an employer may specify reasonable breaks and timing taking into account operations, resources and the interests of employees.  Missed a break?  Compensate by cutting out early or perhaps a payment.

Getting Information
Currently, all information relevant to a proposed decision that may adversely affect an employee’s ongoing employment must be provided unless “good reason” exists not to. In Chancellor of Massey University v Wrigley [2010] NZEmpC 37 the Employment Court highlighted the difficulty of reconciling an employee’s right to know why they were selected for redundancy (rather than their colleague), and the right of another employee to keep comparisons confidential.

Proposed changes clarify that despite information being relevant and employer is not required to provide access if:
• Parties providing the information enjoyed a mutual understanding of secrecy; and
• Providing information would disclose another’s affairs to an unwarranted extent, breach a statutory requirement to maintain confidentiality (think privacy and official information), or another good reason exists not to (like avoiding unreasonable prejudice to the employer’s commercial position).

Most employees are still likely to want to know.  Employers conscious of ensuring a full and frank selection process will welcome change that could be argued to reduce the level of information an employee is entitled to during a restructuring.  It could limit rights regarding information in disciplinary and other employment processes too.

Bargaining
Proposed changes remove the requirement to conclude a collective.  Whilst parties would still need to bargain in good faith, they would no longer be required to continue bargaining when facing a deadlock and the Authority declares bargaining has ended.  An employer can’t simply oppose or object in principle to being party to a collective though – that would be unreasonable.
Also impacting unions is the proposed repeal of the 30 day rule that currently requires all new employees, irrespective of union membership, to be covered by the collective during the first 30 days of their employment, if their work falls within the coverage clause.  Repealing this rule would enable employers to offer and agree individual terms and conditions with new employees who are not union members.

Authority Timeframes
Delays in receiving determinations can cause concern. In keeping with the Authority’s role as an investigative body that delivers determinations without regard to technicalities, and the common view of it as a speedy, informal and practical forum for resolving employment relationship problems, proposed changes set rigid timeframes.  Members must upon concluding a hearing provide (subject to exceptional circumstances), an oral determination, followed by a written determination a month later.  Alternatively a Member may give an oral indication of its preliminary findings, or reserve its determination if an oral indication is impracticable, followed by a written determination three months later (again subject to exceptional circumstances).  Swifter justice?

Being Prepared
Proposed changes, if implemented in their current form, would impact how employers, employees and unions deal with each other.  Stay tuned to Parliament as the Bill progresses – likely by April if past practice is anything to go by.

Lucia Vincent is a Senior Solicitor based in the Dunedin office of Copeland Ashcroft Law:  Lucia.Vincent@copelandashcroft.co.nz.

Disclaimer:  We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations.  Please seek guidance from your employment lawyer for any questions specific to your workplace.

Social networking sites such as Facebook and Twitter have become hugely popular in New Zealand. Such sites are a major medium for communication and an every day part of life but can they get you into trouble at work? In recent years, the Employment Relations Authority (Authority) has seen an increase in the number of employment issues arising from incidents involving social networking sites where employees have posted comments expressing dissatisfaction with their employers and / or colleagues.

Case law in New Zealand demonstrates that employers may take matters seriously when an employee posts comments and other material on a public website that is detrimental to the business or adversely impacts on others, including employees.

In Adams v Wellington Free Ambulance Service Inc ERA Wellington WA81B/10, 23 July 2010, the applicant, Ms Adams, was dismissed for serious misconduct following a formal complaint made by a co-worker. The complaint concerned the way Ms Adams had spoken to him on two separate occasions and also referred to abusive comments directed to him by Ms Adams through Facebook where she referred to him as a “prick” and a “dick”. Ms Adams claimed that the Facebook exchange occurred outside of work and therefore it did not concern the employer.

The Authority found that Ms Adams failed to understand that her interactions on Facebook were legitimate areas of concern for her employer. The Authority stated that her actions outside of work were more serious because they showed that her reactions to work incidents were not left at work, but rather she decided to continue the issues in what she believed to be a private forum.

The outcome of the meeting was that an employer is entitled (and obliged if the issue relates to workers’ health and safety) to investigate problems between co-workers, even if the problems occur outside of work, especially if the genesis of those problems is the workplace. This is because such problems can clearly affect relationships in the workplace, which the employer is in control of and responsible for.

This case demonstrates that employees should be very careful about what they say on Facebook about colleagues as these comments can be taken into account by the employer in deciding whether to dismiss (even when the employee’s conduct occurred outside of work).
In Hohaia v New Zealand Post Ltd ERA Auckland AA362/10, 17 August 2010, Mr Hohaia was dismissed for serious misconduct for operating a publicly accessible Facebook page. The respondent argued that the site brought New Zealand Post into disrepute and seriously damaged the reputation of the business. The respondent further claimed that Mr Hohaia undertook and facilitated comments that denigrated and humiliated a work colleague and undermined the leadership and the effective operation of the particular Delivery Branch.

The respondent’s main concern was that the Facebook site was accessible to the public and that when someone made a comment, everyone was able to see it. Mr Hohaia claimed that he did not realise his Facebook page could be viewed and commented on by the public.

It was found that Mr Hohaia’s Facebook posts suggested he had a significant loss of respect, trust and confidence in his employer. The Authority stated that the negative attitude towards New Zealand Post demonstrated by Mr Hohaia may seriously hinder his ability to undergo reinstatement sincerely and fully.

This case demonstrates that Facebook posts would be taken into account when determining whether trust and confidence still exists between an employer and employee.

In Dickinson v Chief Executive Ministry of Social Development ERA Auckland AA508/10, 13 December 2010, a public service employee posted comments on her Facebook page including references to her political views and derogatory and disparaging remarks about public servants. Ms Dickinson described herself as a government employee and “very expensive paperweight”. She continued that she was “highly competent in the art of time wastage, blame shifting and stationary [sic] theft”.

Ms Dickinson was suspended for another matter and had returned to work when the Ministry become aware of the comments posted on her Facebook page. The Ministry viewed the Facebook comments seriously and following an investigation dismissed Ms Dickinson. It was claimed that the dismissal was not made solely on the Facebook comments but on the basis that together with the other charges, the Ministry’s trust and confidence in Ms Dickinson had eroded to such a degree that dismissal was a reasonable outcome.

The Authority found that the Facebook comments themselves would not have justified a dismissal. However, in this case the dismissal was justified because in viewing Ms Dickinson’s employment history and her past behaviour the Ministry concluded that a point had been reached where trust and confidence no longer existed.

This case also shows that Facebook posts will be relevant in determining whether trust and confidence still exists between parties to an employment relationship.

In Taiapa v Te Runanga O Turanganui A Kiwa t/a Turanga Ararau Private Training Establishment [2012] NZERA Auckland 252, 25 July 2012, the employee requested five days’ leave without pay. The manager was reluctant to approve the leave and so she compromised and suggested he could take one day as a lieu day and two days as leave without pay, but he would have to work on the other two days.
The employee did not respond to this offer and took the week in question as sick leave, claiming he had damaged his calf muscle and the doctor told him he needed to take time off work. The following week, he provided a medical certificate saying he had been medically unfit for work that week, but did not give any details of his illness or injury.

The manager investigated the employee’s use of sick leave. She was suspicious for a number of reasons, including a photo that was posted on Facebook taken at Waka Ama while the employee was on sick leave. The photo showed him sitting on a grandstand with a “large female” sitting on his knee, smiling at the camera and giving the thumbs up.

During the disciplinary investigation, the employee did not admit to leaving home while on sick leave. He would not give any details of the medical condition that caused him to take sick leave. He was dismissed for serious misconduct by dishonestly taking sick leave for personal reasons.

The Authority recognised that evidence in support of an allegation of dishonesty must be commensurate with the seriousness of that allegation. In the employee’s case, there was more than enough evidence for the employer to reasonably conclude that he had been at the Waka Ama while he was on sick leave.

The employee claimed he was entitled to manage his health as he saw fit. However, the Authority determined that the employer was justified in concluding that the employee’s actions in not using his sick leave to rest and recuperate at home or seek immediate medical assistance for his illness or injury, and instead travelling four hours to Rotorua and remaining away from home for seven days, amounted to a misuse of sick leave. His dismissal was justified.

This case illustrates how Facebook posts can be used to prove an employee has misused their sick leave.

In the recent case of Hook v Stream Group (NZ) Pty Limited [2013] NZEmpC 188 ARC 23/13 the Employment Court (Court) took the opportunity to comment on the use of material from Facebook. Mr Hook posted the following comments on his Facebook page on 26 July:

Mr Hook: Welp, work found out I am looking for another job today, and I may get in trouble for it. Thoughts?

On 18 August, the following exchanges were posted:
Mr Hook: Going to quit my job tomorrow, while in annual leave. Probably should have timed that better.
Reply: is your boss on Facebook.
Mr Hook: Na. If he was, I’d tell him he is a dick head.
Reply: That’s putting it awfully nicely. I hope he gets mauled by a pack of rabid Dingos.

The Court said that it is well established that conduct occurring outside the workplace may give rise to disciplinary action, and Facebook posts, even those ostensibly protected by a privacy setting, may not be regarded as protected communications beyond the reach of employment processes. “How private is a written conversation initiated over the internet with 200 “friends”, who can pass the information on to a limitless audience?” The Court went on to say that comments made on virtual social networks can readily permeate into real-life networks and “Facebook posts have a permanence and potential audience that casual conversations around the water cooler at work or an after-hours social gathering do not.”

The cases that the Court referred to in Hook recognise that Facebook is not a strictly private forum and therefore even if your privacy settings are high it is simply not worth posting disparaging comments regarding work.

If you discover your employees are publically posting disparaging comments about you, other staff or your business, make sure you follow a full and fair process to investigate and if appropriate take disciplinary action.  Even if you don’t think staff behave badly behind your back on social networking sites, we recommend that all employers carefully craft a policy on social networking that clearly outlines what kind of comments and behaviour is acceptable.  Please contact one our team if you would like any assistance in this area – we would be happy to help.

ATTENTION ALL FARMERS!

WorkSafe New Zealand has recently announced that they will be carrying out health and safety inspections on farms in the Southland region over the next two months.

Will an inspector turn up without any warning?
Yes.
What are the areas of focus?
The inspectors will focus on the following areas during the visits:
•Vehicle maintenance;
•User experience and training;
•Vehicle use;
•Machine and PTO guarding; and
•Health and Safety systems.

What should I do to prepare?
The Health and Safety in Employment Act 1992 requires you to have a health and safety plan in place on your farm. As part of your plan you should maintain an accident and incident register and you should also identify the hazards and then “take all practicable steps” to eliminate, isolate or minimise those hazards.

Now is a great time to review your current health and safety plan or if you don’t have a plan then there is no better time than now to implement one.

WE CAN HELP:
If you have any questions regarding your requirements around the upcoming Health and Safety inspections please do not hesitate to call us on the (03) 218 1854. We are more than happy to field any questions you may have and help ensure you are fully compliant with your legal obligations as an employer.

In a move that should have farmers excited, the Government has amended the current Minimum Wage Order 2014 (“Order”) to include a fortnightly minimum wage rate. This comes after the Government, in consultation with unions and employer groups, recognised that employers frequently use fortnightly salary payments.

Current Wage Order

The current Order prescribes only three possible ways to calculate compliance with the minimum wage: hourly ($14.25), daily ($144.00 for an 8 hour day) and weekly ($570.00 for a 40 hour week).

Compliance with the above can often be onerous when payments are made either fortnightly or monthly, as is commonly the case in the agricultural industry.

Example:

Take a Farm Assistant on a $35,000 annual salary who works a fortnightly roster of 11 on, 3 off. The employee works 8 hours per working day and is paid a fortnightly instalment of $1,346.15 ($35,000 divided by 26 weeks). Based on the 11 on, 3 off roster the Farm Assistant will work 56 hours in the first week and 32 hours in the second week.

Looking at each week separately (as the current Order currently requires) the employee is paid as follows:

Hours Worked             Hourly Rate ($)
Week 1:                                56                                    12.02 (Below minimum wage)
Week 2:                                32                                    21.03 (Above minimum wage)

Welcomed Amendments

The new order will take effect from 26 June 2014. Employees must not be paid less than $1,140.00 per fortnight if they work 80 hours in that fortnight. They must also be paid $14.25 for each hour worked over 80 hours.

The addition of a fortnightly minimum wage rate will result in more flexibility for employers who work in industries where fortnightly rosters arrangements are common. Rather than focusing on each week separately, the employer is now able to look at a fortnightly period if that better reflects their payment arrangements.

This change is welcomed by farmers, however be aware the amendment cannot act retrospectively; i.e., prior to 26 June 2014 you need to look at the wages on a weekly basis.

Time and Wage Records – A Legal Requirement

We can’t emphasise enough the importance of keeping accurate, reliable and easily accessible time, wage and leave records. As well as it being a legal requirement, timesheets help identify when an employee is being paid less than the minimum wage.

Please note benefits such as meat, firewood, wet weather gear or milk cannot be used to make up any shortfall in the minimum wage.

Be aware that a wage claim can be made up to 6 years after the fact. In the event there is a dispute the employee is deemed to be correct unless proven otherwise. Where there are no timesheets the employer will be hard pressed to rebut the employee’s evidence.

If you are not actively using timesheets in your workplace we strongly encourage you to introduce them, even if your employees are paid a salary. Progressive Consulting produces timesheets in pads of 50 sheets. These pads can be purchased by contacting Kathy Temple on (03) 218 1854.

Disclaimer: We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations. We recommend that you obtain legal advice specific to your situation before proceeding and would be happy to help in this regard.

Janet Copeland and Melissa Vining (Agri HR consultant) recently featured in the Southland Times to read this article regarding a lack of understanding around employing farm workers click on the pdf below.

File Download (PDF):
Time to pay attention to farm workers’ wages