Fatigue can be defined as the temporary inability, or decrease in ability, or strong disinclination to respond to a situation, because of previous over-activity, either mental, emotional or physical. Fatigue can create significant risks which need to be controlled in the workplace, and can significantly impact on worker ability to perform their work safely.
While fatigue is not a new concept, the law relating to fatigue in a health and safety concept is rapidly developing, and accordingly it needs to be on the radar for employers in this context.
We explore a recent case below to highlight some of the key issues employers should be aware of.
Fatigue Case Study:
In November 2014 a Freight Lines Ltd employee fell asleep at the wheel of his truck and double trailer unit running off the road into a tree. He suffered serious injuries including a spinal fracture and a brain injury.
Freight Lines was prosecuted by WorkSafe regarding the accident. Leading up to the crash the employee had been working significantly in excess of hours permitted by Land Transport requirements, including skipping rest breaks. A focus for the business was evidenced as being the Cook Strait ferry departure time.
It was accepted in court that the tasks assigned to the employee in the days leading up to the accident could not have realistically been achieved within the legal logbook/work time limits, yet these were the tasks he had been assigned by the dispatcher.
Courts finding
The Court held Freight Lines failed to allocate tasks in a way that reduced driver fatigue or to train the dispatchers to deal with this issue, and found that the dispatcher should have factored in the logbook requirement including rest and meal breaks, into the trip allocated, to determine whether this was possible.
The Court ordered $30,000 payable as emotional harm reparation to the employee as well as a fine of $51,000 against Freight Lines and $5,000 towards prosecution costs. The dispatcher was personally fined $4,000.
Wider Application
To manage the risks associated with fatigue, workplaces need to assess what risk a fatigued person may pose in the workplace and implement the control hierarchy in respect of this. Fatigue can be caused by workplace factors as well as outside factors, including lack of sleep and rest during non-work periods.
Tips to manage the risks posed by fatigue in your workplace include:
Developing a relevant policy;
Training those in charge of workload and task allocation in fatigue management;
Ensure workloads and tasks will be managed to an appropriate level e.g. managers should not assign work that requires excessive time outside of agreed work hours;
Roster workers to ensure adequate sleep opportunities;
Train workers in both identifying fatigue in themselves and others and encourage reporting; and
Train workers in their responsibility to manage their fitness for work by sleeping and resting sufficient during non-work periods.
If you’d like to discuss managing fatigue in your workplace, please contact our team.
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek guidance from your lawyer for any questions specific to your workplace.
The Holidays Act 2003 (the Act) will change as of 31 January 2018, to allow the health practitioners as listed below to certify whether someone is medically unfit or fit to work. Currently, this ability is restricted to medical practitioners (eg, doctors). The extension will cover:
Chiropractors
Dentists
Dietitians
Radiologists
Midwives
Nurses
Occupational Therapists
Optometrists and Dispensing Opticians
Osteopaths
Pharmacists
Physiotherapists
Podiatrists
Psychologists
Psychotherapists
The change is part of a broader move, by the update of relevant laws, to recognise the expertise of these health practitioners who are registered with their relevant professional board and regulated by the Health Practitioners Competence Assurance Act 2003. The intent is to allow them to meet patient needs in a more cost-effective and timely way.
What does this mean for you?
For employers, the change means that employees will be able to provide proof of sickness or injury from a broader range of people, and will likely make this proof even easier to get. We frequently deal with employers who are frustrated at having received a blanket “unfit for work” medical certificate, where they don’t have any information about the specific condition the employee is dealing with or how that affects their ability to work. We expect employers are likely to need to request information from employees about their illness or injury more often, relying on their duty to ensure the workplace is healthy and safe for all workers, and on the duty of good faith which includes a requirement that employees engage and communicate with the employer.
Now is a great time to ensure that you have the right clauses in your employment agreements to make sure that what is expected of employees is clearly set out. If you would like advice in respect of how this change will impact your business, please contact us.
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.
All employers are required to provide employees with an individual employment agreement (IEA), but working out when to use a casual IEA and when to use a fixed term IEA may not be as straight forward as it sounds.
Fixed Term IEA?
A fixed term IEA can be used where an employer has a genuine reason, based on reasonable grounds, to employ on a fixed term basis, for example, covering for maternity leave or to complete a specific project.
Fixed term IEAs must specify:
The genuine reason for the fixed term;
The way the employment will end at the end of the fixed term; and
Why the employment will end in this way.
Where an employee is engaged for a fixed term, at the end of the fixed term, their employment will terminate. If the fixed term IEA is not correctly drafted, employment is allowed to run on and does not end at expiry of the fixed term, or if the employee is given the expectation of continuing work after the fixed term, there is a real risk that the employment relationship will be “ongoing”. In that case, the employer will only be able to end the employment relationship for “cause” (eg. redundancy, poor performance, disciplinary etc), and may also have additional obligations to the employee in terms of holidays and leave.
Casual IEA?
A casual employment relationship exists where an employee works on an “as and when required” basis only – that is, there is no expectation that work will be provided, or performed, on either party. A casual IEA should be drafted in essentially the same way as a fixed term IEA, and reflect that work is for short periods of engagement as the parties may agree from time to time. The terms of those engagements, including the reasons for the same, should also be recorded on each occasion that the employee is engaged to work.
Significant risk exists where an employee is labelled “casual”, but actually works on a regular or continuous basis, because they are often not provided minimum holiday/leave entitlements, and therefore can claim for these. Employers also cannot simply stop offering work to an employee who has been working in this way, or otherwise face possible personal grievance action. Employees who work regularly or continuously should generally be engaged as an “ongoing” employee, with an appropriate IEA reflecting this, even if they only work part-time.
If you need advice to determine which agreement your employee should be on please contact us.
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.
March 2017
It’s no secret that domestic violence in New Zealand is a major issue in New Zealand. It affects one in three women, the Police attend a family violence incident every seven minutes and it costs New Zealand up to $8 billion a year.
Recently the Warehouse Group, ANZ and Countdown have acknowledged the effect domestic violence has in the workplace by implementing policies offering victims of domestic violence extra paid leave.
With the introduction of the Domestic Violence – Victim’s Protection Bill (Bill), the Government is now also acknowledging that what happens at home can affect the workplace. The Bill has passed through its first reading and is now before the Select Committee.
As it stands, the Bill, if enacted, will have an effect on the Employment Relations Act 2000 (ERA), the Health and Safety at Work Act 2015 (HSWA) and the Holidays Act 2003 (HA), as follows:
Per the ERA, employees who are victims of domestic violence would be able to request a variation to their working arrangements.The employer would have to respond as soon as possible, but not later than three months, after receiving the request and would only be able to decline requests on certain grounds.
Per the HSWA, a hazard would be redefined to include reference to a worker suffering domestic abuse, and would have to be eliminated/managed in the same way as any other hazard.In terms of reasonably practicable steps, PCBUs would need to consider policies on how to deal with domestic violence situations as well as training for health and safety representatives in supporting victims of domestic violence.
The HA would provide 10 days’ paid additional leave for victims of domestic violence, for the purpose of dealing with the effect of this.
The Justice and Electoral Committee is inviting submissions on what New Zealanders think of the new bill. Submissions are to be received by midnight on 28 April 2017.
We will keep you informed of its progress. In the meantime, if you need advice on domestic violence policies and reducing the hazard caused by domestic violence please contact us.
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.
March 2017
The first Employment Relations Authority (Authority) determination on the new hours of work legislation, introduced in April 2016, has been released and has escalated the matter to the Employment Court for decision.
Applications were lodged by two workers (Ms Doran and Mr Fraser) employed in two different McDonalds restaurants. Both employees sought to resolve concerns relating to availability provisions in their individual employment agreements (IEAs), and the requirements of section 67D of the Employment Relations Act 2000 (Act), which was introduced to regulate against so-called “zero hour contracts”.
The new law: availability provisions
Where an employee’s performance of work is conditional on the employer making work available to the employee, and the employee is required to be available to accept any work that the employer makes available, the Act provides that the relevant IEA (or collective agreement) must include an “availability provision”.
Per s67D, an availability provision can only be used where the employer has genuine reasons based on reasonable grounds for including it, in which case the IEA must specify the agreed hours of work. Perhaps most controversially, employers must now also pay “reasonable compensation” to employees for this availability. No definition of reasonable compensation is provided in the Act, but factors listed as considerations in determining whether compensation is reasonable include the number of hours the employee is required to be available, the proportion of these compared to the number of agreed hours, any restrictions that the employee suffers as a result of the requirement to be available, and their rate of pay. Notably, there is a “loophole” for salaried employees, whereby the parties can agree the employee’s remuneration includes compensation for the employee’s availability (provided minimum wage requirements are met). The periods the employee is required to be available must also be specified in the IEA.
Employees’ claims
Here, the employees claimed that their IEAs, entered into in August 2016, included a term identifying the employees’ “agreed availability” but did not specify what compensation was payable in return for such availability. Both employees claimed unjustified disadvantage and sought orders requiring their employers to comply with the Act, and to reimburse them a sum equal to an availability allowance of $5 for every hour of availability.
What this means for you
The Employment Court decision will likely shed some much needed light on the new changes, in particular what amounts to “reasonable compensation.” The Authority commented in its determination that “The Court’s interpretation of this newly enacted provision could assist not only the parties but also guide employers, workers and their unions generally in daily workplace arrangements and in bargaining on terms and conditions.”
It is clear that many clauses such as “The employee is required to work all additional hours” or “The hours of work will depend on the availability of work and our business demands” which were common before the law changes are unlikely to adhere to the current legislative requirements and need to be updated.
If you’re unsure how to manage your obligations regarding availability, please contact us. We would also like to remind you that on 1 April 2017 all existing employment agreements must reflect the new legislation. You can read more about the others changes here:
https://www.copelandashcroft.co.nz/news/have-you-updated-your-employment-agreements-yet
https://www.copelandashcroft.co.nz/news/recent-employment-law-changes-faqs-hours-work-shift-cancellation-secondary-employment-and
https://www.copelandashcroft.co.nz/news/zero-hour-contract-restrictions
https://www.copelandashcroft.co.nz/news/employment-standards-legislation-bill-passes
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.
March 2017
Employment relationship problems are commonly resolved by confidential settlement negotiations, resulting in a full and final settlement being agreed between the parties. The terms of the settlement can be captured in a Record of Settlement, signed off by a Ministry of Business, Innovation and Employment mediator, pursuant to s149 of the Employment Relations Act 2000 (ERA).
Settlements agreed this way are final, binding, non reviewable, and enforceable as though they had been determined by the Employment Relations Authority. Settlement terms commonly include confidentiality and “non disparagement” clauses, which may be enforced by way of compliance order and penalty for breach.
A recent decision by the Employment Relations Authority (Authority) related to the breach of such a term in a settlement agreed between an employee, Brooke Woodrow, and her ex-employer, the Wanaka Sun, a free local paper.
Case summary
Here, the parties had agreed to not make derogatory comments about each other to another person or organisation. However, after the settlement was signed and certified by a Mediator, Wanaka Sun was informed that Ms Woodrow had made derogatory comments about them at her new place of work. Another former employee of Wanaka Sun advised that Ms Woodrow had referred to her previous employer as a “f*ckwit” and said that “Wanaka Sun was a stressful place to work”.
Wanaka Sun raised a claim against Ms Woodrow for breach of this settlement term, and the Authority determined that it was unlikely that Ms Woodrow had used the alleged inappropriate language about her former employer, but held that she had made the comment about it being a stressful place to work. The Authority determined that this comment fell within the definition of “derogatory”, as negative inferences could be drawn from that comment.
Ms Woodrow had therefore, breached a term of the settlement agreement. The Authority then had to determine what penalty if any should be imposed on Ms Woodrow for this breach.
The maximum penalty which could be awarded against Ms Woodrow as an individual was $10,000, but the Authority determined that as the breach was of a very mild character and there was no discernible harm suffered by Wanaka Sun, the appropriate penalty was set at $250.00. Ms Woodrow was also ordered to pay the Wanaka Sun $71.56, which was the cost of filing the matter with the Authority.
What impact could this decision have on you?
Before signing any settlement agreement, it is imperative that the parties understand its terms and the effect of these, including being sure what is expected in terms of confidentiality and what can and can’t be said about it or the relationship problem it resolves.
This case highlights that a relatively minor comment to another individual can amount to a breach of the settlement agreement and could result in legal action, even where the harm is negligible.
If you would like to know more about what your risks and obligations are in relation to any settlement, or would like to discuss bringing a claim in respect of breach of settlement, please contact us.
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.
March 2017
We have updated this article previously issued in Inform, in light of an Employment Relations Authority determination issued in late August 2016.
In this case, the Authority found that the employer could not rely on the trial period because the relevant clause in the employment agreement did not specify the start date of the 90 day trial period. The Authority found that it was not clear when the trial period would run from, and did not accept that it was obvious that it would take effect on the first day of the employee’s employment.
If you’re not sure your trial period provision covers all of the points below, contact us about getting a reliable clause you can use.
Trial periods are available to all employers for new employees for the first 90 days of employment, and are a helpful tool because they allow employers to dismiss without recourse to a personal grievance claim for unjustified dismissal.
However, there are a number of requirements that must be met in order for the trial period to be safely relied upon to dismiss, and the Courts strictly interpret these requirements because they limit employee rights.
Requirements
The employment agreement must include a trial period provision which states:That the employer may dismiss the employee in the first 90 days of employment; and
In that case, there is no entitlement to bring a personal grievance for unjustified dismissal.
The date on which the trial period starts (usually the same as date as the date on which employment commences).
We recommend that a trial period clause also provides for a shorter notice period, and for the employee to be required to take garden leave during the notice period (because case law has determined that payment in lieu of notice is not acceptable where employment is terminated during a trial period – notice must actually be given).
The employee must be a new employee, and must not have done any work for this employer in the past. A person that starts work, even just for five minutes, will not be considered a new employee. Make sure you double check this – it is especially relevant where you are purchasing a business with existing employees when timeframes are often tight and getting employees to sign new agreements is a low priority.
A trial period clause must be:Included in the employee’s written employment agreement; and
Signed by the employee prior to their first day of work (even an hour after starting has been held to be too late!).
Employees must be told of the trial period when an offer, even a verbal offer, is made. It is also a good idea to include a sentence in your offer of employment letter that states that the agreement includes a trial period. When offering an employment agreement, you must also inform the employee that they have the right to seek independent legal advice and give them an opportunity to seek such advice prior to signing the agreement.
Dismissing during a trial period
If you are concerned about an employee’s performance or conduct, and their employment is subject to a trial period, we recommend that you first check that you have adhered to the above requirements. To terminate in reliance on a trial period, you need to prepare a letter for the employee explaining this and giving notice, before the 90 day timeframe has expired. You should give this letter to them at a meeting where you explain the decision.
Although you don’t have to give a reason for dismissing unless you are asked, it is good to be able to point to something if you are. This is because you are still required to be proactive in your communication with the employee, including telling the employee why you are dismissing them if they ask, even if those reasons wouldn’t usually be a justifiable reason for dismissing them without the trial period.
Remember, all other employment obligations apply during the trial period and an employee is not prevented from bringing any other kind of claim, for example, regarding discrimination.
If in doubt, call us for help – the trial period provides a great opportunity for flexibility, but only where used in strict compliance with the legal requirements.
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek guidance from your lawyer for any questions specific to your workplace.
In New Zealand volunteers are at the heart of many organisations from sporting clubs and schools to charitable organisations. However, many businesses also have people performing unpaid work, including internships and work trials, and the law around this continues to develop. A volunteer for the purposes of employment law is someone who not only doesn’t expect to be rewarded for work performed but also does not receive reward for carrying out the work. More information is available here.
Recent media reports discussed the Labour Inspectorate investigation of South Island Robinwood Farms’ use of “volunteers”, known as WWOOFers (Willing Workers on Organic Farms), with over 1000 people, including a lot of backpackers, performing work for it each year. The work often involved being hired out to cut firewood or do gardening, up to 40 hours a week, with profits going to Robinwood Farms. In return they were paid $120 per week plus food and accommodation.
2017 saw a significant increase in Labour Inspectorate resources, and in investigation of to employers breaching minimum standards, either proactively or in response to complaints. The risks in relation to employers failing to comply with minimum standards are significant.
While the Labour Inspectorate has yet to lay charges, Robinwood has been ordered to pay over $20,000 in unpaid wages and could be liable for up to $20,000 per breach should penalties be awarded, for breaches of minimum standards including, for example, payment for hours worked, annual holidays, sick and bereavement leave, record keeping and provision of employment agreements, all of which are required by law.
Cases like this are becoming more frequent, as we have discussed in recent articles here: https://www.copelandashcroft.co.nz/news/failure-adhere-minimum-standards and https://www.copelandashcroft.co.nz/news/further-penalities-breaches-minimum-employment-standards
What does this mean for you?
If you have people volunteering for you in return for rewards of any kind there is a real risk that these people are employees and therefore minimum standards will apply. It is important to ensure you are categorising workers appropriately, should a “volunteer” arrangement be challenged by the person themselves, or a Labour Inspector. Genuine volunteer arrangements should be appropriately documented, to manage the risk of challenge.
If you would like to discuss how this may impact you, please contact us.
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.
A recent decision by the Employment Court determined that a company unlawfully terminated one of their employees due to his role as a union delegate with the union. The company was ordered to pay $19,721.29 to the individual, plus interest.
Case summary
Mr Hellyer was employed at Go Bus Transport Ltd (Go Bus) as a Bus Driver. In August 2014 Mr Hellyer let his wife travel on his bus for free as she had left her bus pass and wallet in the vehicle Mr Hellyer had driven to work that morning. An undercover bus inspector witnessed this and reported it back to Go Bus.
Go Bus had a strict no fare/no ride policy which all drivers were expected to adhere to. As Mr Hellyer had breached this policy, he was subsequently dismissed.
When the matter was heard in the Employment Court, Go Bus admitted that when they were making the decision to terminate Mr Hellyer’s employment, they took into account his role as a union delegate, which is strictly prohibited by the Employment Relations Act 2000. Go Bus concluded that because of Mr Hellyer’s role, he was well aware of the company’s position on free travel and allowing his wife to travel without collecting or accounting for the fare, was not an innocent mistake.
The Employment Court determined that Go Bus had held Mr Hellyer to a higher standard than other employees because of his union role. The Court concluded that he was therefore discriminated against. Further, that the discrimination significantly tainted Go Bus’s conclusion that Mr Hellyer acted dishonestly and fraudulently in failing to account for his wife’s $2.90 fare.
The Employment Court also concluded that Mr Hellyer was treated differently as two other employees caught providing free bus rides were not dismissed, but given final written warnings. He was therefore found to be unjustifiably dismissed.
What impact could this decision have on you?
It is crucial when making a decision on what, if any, disciplinary action to take when investigating an issue of serious misconduct that you only take into consideration the facts and information gathered as part of the investigation.
Taking into account any other factors such as their union status, previous complaints not investigated, previous performance issues not addressed, could mean the dismissal is deemed unlawful. Further, if you are investigating more than one employee for the same misconduct issue, each employee’s outcome should be similar.
If you would like to know more about conducting a disciplinary process, please contact us or attend one of our seminars in March across New Zealand. For further information on our seminars click here.
21 February 2017
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.
A recent Employment Court decision has determined that a recruitment agency breached the Wages Protection Act 1983 (WPA) by charging premiums for job offers.
Case summary
Section 12A of the WPA prohibits premiums being charged for employment. The section states that where an employer receives any money by way of a premium, such as a deduction from wages, then the employee may recover that amount from the employer.
Tech 5 Recruitment Ltd (Tech 5) advertised for qualified carpenters in the Philippines to help with the rebuild in Christchurch. Tech 5 had been advised by other recruitment agencies that standard practice in the Philippines was to conduct trade testing with candidates and candidates would pay for their own testing. It arranged for its prospective recruits to undertake trade testing in the Philippines involving interviews and practical tests of carpentry skills by a New Zealand licensed builder.
Accordingly, 25 carpenters successfully passed the testing and were recruited to work in New Zealand, each being told that they had to pay $586 for their testing. This sum was subsequently deducted from their wages pursuant to bond clauses and the trade testing clauses in their employment agreements.
The Labour Inspector sought recovery of the $586 in the Employment Relations Authority. The Authority determined that that the charges Tech 5 had sought against the Filipino workers were training bonds and therefore not premiums.
The Labour Inspector argued against the Authority’s decision in the Employment Court with the Court determining that the word “premium” includes ‘paying to acquire a job’. The Court held that a bond ordinarily has mutual benefits to both employee and employer. In this case the Filipino workers derived no benefit from the trade testing, other than getting a job. Tech 5 gained all the benefit from the testing.
The Court also recognised that if trade testing was conducted for candidates in New Zealand, Tech 5 would normally have taken on those recruitment costs. Therefore the obligation to repay the trade testing did not arise from a bond.
The Court declared both the bond clauses and the trade testing clauses in the employment agreement were unlawful premiums.
What impact could this decision have on you?
When drafting employment agreements you should be mindful that a “premium” not only includes ‘paying to acquire a job’ but applies to an employer recouping, or attempting to recoup, recruitment-related costs or other expenses that would ordinarily be borne by an employer.
If you want to ‘bond’ an employee, ensure you are getting mutual benefit from work done in exchange for the support you provide the employee. A proper connection between the job and the reason for the bond is required to avoid breaching s 12A of the WPA.
If you are concerned that your recruitment practices or the wording of your employment agreements could potentially result in a breach of the WPA, please contact us.
21 February 2017
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.