Legal Terms Glossary
Ensure every employment agreement with a 90-day trial clause is signed by the employee before they step foot on the premises to start work.
The employee must be a new employee and never have worked for the employer before.
The 90-day clause must be in writing and the employment agreement must be signed by both the employee and the employer and prior to the employee starting the first minute at work.
You can dismiss the employee during the 90-day trial period and the employee cannot bring a personal grievance or other legal proceedings against the employer in respect of the dismissal.
Common Mistakes:
- The employer does not provide a written employment agreement or forgets to add the trial period provision into their employment agreement.
- The employer does not clearly state when the trial period starts; e.g. if there is a period of induction, the start date must be made clear.
- The employer states that the 90-day trial is for three months instead of for 90 days.
- The employer states the trial period is up to 90 days which does not specify the 90-day length and does not comply with the Act.
- The employee does not sign the employment agreement until after they have started work.
- The employer gives notice of the dismissal outside of the trial period.
Abandonment of employment happens when an employee fails to come to work for a period of time without explanation. In these cases, the employment may be treated as having been terminated without notice by the employer.
Employment agreements usually have an abandonment of employment clause that allows a period of between 3 and 5 days of unauthorised absence before employment is considered to be terminated.
If there is no abandonment clause in your employment agreements, an of absence of 5-7 days would be sufficient time to reasonably consider whether the employee has abandoned their employment.
Common Mistakes:
- If the employer does not do their best to contact their employee during their absence and find out why they have not turned up to work, the employee could raise a personal grievance for unfair dismissal on grounds of procedural unfairness.
- If there is a good reason for their absence, like a car accident for example, and they were unable to contact the employer, you may not be able to end their employment on the basis of abandonment.
Everyone in New Zealand is covered by ACC if they’re injured in an accident. It doesn’t matter if you are working, unemployed or retired. It also includes visitors to New Zealand.
The cover ACC provide helps pay for the costs of your recovery. This includes payment towards treatment, help at home and work and help with your income.
Everyone in New Zealand who owns a business has to pay levies. The levies paid provide cover for you and your employees if someone is injured.
Any employee who is intending to legally adopt a child under the age of six qualifies for maternity leave if, at the date they will first assume care of the child, they will be in the employment of the same employer in the immediately preceding six or 12 months for at least an average of 10 hours a week (including one hour in every week or 40 hours in every month).
What is Alcohol and Drug use?
- Alcohol and drug use is the use of alcohol and non-prescription drugs at work.
- Which can impair employees at work
- Which then often leads to decreased productivity and wellbeing in the workplace.
Why Should Alcohol And Drug Use Matter To Me?
- Employees under the influence of drugs and alcohol in the workplace is unsafe in most businesses
- It may lead to preventable accidents which affect other employees and clients and the employee
- Other employees may feel unsafe and threatened.
- It is unprofessional and reflects badly on the company.
- Inebriated or drug affected employees do not comply with current Health and Safety legislation
What Does It Look Like?
Drug And Alcohol Use includes;
- employees taking non-prescription drugs or alcohol at work
- they could appear visibly impaired
- unable to concentrate
- not walking straight
- incoherent
- physical symptoms like dilated pupils or excessive sweating
What is Not Drug and Alcohol Abuse?
- An employee taking prescription drugs
- An employee having a glass of wine in the evening after work
Alcohol And Drug Use Impacts On The Workplace
- Can mean there are severely impaired employees in the workplace
- Can make other employees feel unsafe
- Can affect workplace culture negatively
- Can decrease productivity of certain individuals
- Increasing the workload for other employees
What should I do?
- If you believe an employee is under the influence of drugs or alcohol, there are various measures you can take.
- You may want to talk to your employee and tell them your concerns
- You may want to test your employee
- Check your drug and alcohol workplace policy
- If not, you can rely on the Health and Safety at Work Act 2015
- Documenting everything that happens
- Have at least one witness (other than you) to the behaviour so it can be validated
Best first steps
- Have a chat with them (depending on how inebriated they are).
- The employee may be forthright and disclose what is going on.
- Your obligation is the employee’s safety, other employee safety and your obligations under the Health and Safety at Work Act 2015
- Discuss any personal circumstances or situations that may be responsible for acting in a certain way.
If you need to drug test them read the Drug Testing below.
Drug Test
What is Drug Testing?- When you believe an employee is under the influence of drugs or alcohol,
- There is risk to the employee, other employee or clients
- You have an obligation to safeguard your employees and clients under the Health and Safety at Work Act 2015
What to do?
As an overview:
- Check your employee’s employment agreement for the drug and clause
- Check your company policy and around drug and alcohol
Follow this as closely as possible - Ensure you are communicating openly with your employee about what is happening
If you Do Not have a policy:
- Use your Common-sense
Rely on Health and Safety at Work Act 2015 if there is no mention of drug testing in either your company policy,
or their individual employment agreement – there is likely no authority for you to force them to get a test. If they are happy to, they may want to get a test to prove to you that they are not under the influence. However, if they are not willing – you are not able to force them.In this situation, you may want to have a chat with them and see if they are forthcoming with you. There may be personal circumstances affecting them and causing them to act out or be under the influence.
If you Do have a policy:
If your employment agreement states that you do have the authority to test them, or it is referred to in the company policy – you should first chat to the employee and let them know the situation/what you are planning on doing. Again, they may be forthright and explain to you what is going on. If they are not being cooperative, you can ask them to get drug tested.
Ensure you are providing transport to and from the testing site. If the employee refuses to get tested, you can inform of the policy around this – for example, refusing a test may be treated the same as a positive test.
Depending on the outcome of the test, and the workplace policy around drugs and alcohol, there will be certain outcomes available to you. Ensure you are following the company policy as closely as possible to ensure there is not an opportunity for the employee to raise a personal grievance.
Impacts of Drug and Alcohol Use on the Workplace
- Health and safety impacts of having people under the influence in the workplace
- Can make other employees feel unsafe
- Can affect workplace culture in a negative way
- Can decrease productivity of certain individuals which therefore increases workload onto other employees
- Can lead to an increase in sick days taken
If an employee works on a public holiday that is an otherwise working day for them (and they are not just employed to work on public holidays), they are entitled to a full day off on a different otherwise working day for them. This is called an alternative holiday (or sometimes a ‘day in lieu’) and it compensates an employee for working on a public holiday.
Work appraisals are a simple yet highly effective way of ensuring you and your employee are on the same page in terms of what is expected from the job. Appraisals do not need to be formal and do not need to be on a set timeframe. However, they should be documented and the more often they occur, the less risk there is of problems developing.
Appraisals at work
There is no formal time period or structure for an appraisal unless it is outlined in the employment agreement or contract.
During an appraisal, you should outline what you expect and also give your employees a chance to say they would like to accomplish.
In evaluating an employee, it is recommended you discuss what goals have and haven’t been achieved, whether the employee is enjoying the job, anything else that is impacting their job (negative or positive) and finally a discussion regarding pay increases or bonuses.
Should Appraisals be Documented?
Misunderstandings can happen during any discussion between employer and employee, but these can be limited by documenting the meetings. It is recommended employers write what happened at the appraisal meeting and what was agreed and share this with the employee.
Appraisals are an effective way to address performance issues before a full and formal performance review.
Employers should have a zero-tolerance policy for violence in the workplace.
Assault can be anything from verbal abuse to threats and physical assault, and can manifest between colleagues, customers and the public. All pose the risk of short term and long-term consequences for any business.
Not all cases of violence are reported because people either turn a blind eye or the victims themselves are too afraid to speak up. When a violent incident occurs, it must be addressed as soon as possible. The first and most critical step is to ensure all employees and visitors are safe.
Start a formal investigation into the matter while providing support and stress relief for those affected by the incident. If an act of violence was committed by an employee, follow the standard disciplinary procedure for serious misconduct.
After the incident, review the current workplace violence policy and make changes where necessary to improve the overall system.
Average daily pay is a way of determining what an employee should be paid on a day that they would have otherwise worked and didn’t. It is determined by dividing the employee’s gross earnings for the last 52 weeks (or as many weeks as employed if less than 52 weeks) by the number of whole or part days that the employee has worked over that period, including any paid holiday or leave but excluding any other day the employee did not work.
This can be used to calculate payment for public holidays, alternative holidays, sick leave, and bereavement leave if:
- It isn’t possible or practical to work out the employee’s relevant daily pay, or
- The employees pay varies within the pay period where the holiday or leave falls
Most employers use a reputable wage programme which calculates all payments accurately.
The term, ‘casual’ is not defined in the Holiday’s Act 2003 or the Employment Relations Act 2000. ‘Casual’ is usually used to refer to a situation where an employee has no guaranteed hours of work, no regular pattern of work and no on-going expectation of employment.
The employer doesn’t have to offer work to the employee and the employee doesn’t have to accept work if the employer offers it. If this is the employee’s situation. it needs to be made clear in the employment agreement.
What is a Criminal Record?
- A criminal record exists if a person has been convicted of a crime
- Employers, in most cases, are entitled to ask for a potential employee’s criminal record when you are choosing to hire them
What am I entitled to know?
The employer may;
- Access an employee’s or job applicants’ relevant criminal history
- From the Ministry of Justice or the Police
- If the employee agrees in writing
- You can add a form to a job application requiring consent to obtain a copy of the employee’s criminal record
Job Applicants:
- Do NOT have to tell you about their criminal convictions if not asked to.
- If asked, they should act in good faith and disclose them to you.
- Disclosure is important if the conviction is serious and may impact on your choice to hire them
What should I do?
…If I Want To Hire Someone Before I See Their Background Check- This can be risky
- The vetting system takes around 2 weeks or so
- One way to safeguard yourself is to
One way to safeguard yourself is;
- Be smart
- Be organised
- Allow time for the vetting process to occur during the hiring time-frame
Here’s how to protect yourself if you are in a hurry
- On the job application form, clearly state all applicants must disclose all criminal convictions unless covered by the Clean Slate Act 2004
- State the consequences if the applicant fails to does not provide an honest application including their criminal record information
- Get written permission from the applicant to check their criminal record
- Offer them the position contingent on the criminal record check being satisfactory.
- This should be in writing in a letter, or in their employment agreement.
If their background check comes back unsatisfactory:
- Still follow a fair consultation process
- Talk to them about why they lied
- They may have genuinely forgotten
- Consider their explanation before you make a final decision
- You can Invoke the clause in their employment agreement about non-disclosure of their criminal record.
If my employee is convicted of a criminal offence
- Taking disciplinary action against an employee is possible if they are convicted of a criminal offence
- Even if the conduct occurred outside the workplace
- Tread carefully
- It is a touchy event that could lead to personal grievances
- If your proposed dismissal is because you believe their actions have brought you or your business into disrepute, make sure your facts can be verified
An Employer can only make deductions from an employee’s pay if these deductions are required by law (e.g. PAYE tax) or are reasonable and agreed to in writing by the employee. In some circumstances, deductions can be made where there have been overpayments.
The decision of a member of the Employment Relations Authority about a case.
Human rights are basic rights and freedoms that belong to every person in the world, from birth until death.
These basic rights are based on shared values like dignity, fairness, equality, respect and independence. These values are defined and protected by law.
Disabled people sometimes experience unfair treatment in the workplace because of how they look, speak, or their reliance on guide dogs, wheelchairs and other remedial means.
All people with disabilities have the right to participate equally in employment and in society. Employers my need to make modifications or adjustments to certain arrangements to accommodate their disability.
These can include physical adjustments (e.g. by providing access to buildings or disability toilets), modifying the way a job is done (e.g. by allocating aspects of the job to another person), or relaxing certain policies (e.g. by allowing guide dogs into restaurants).
Every employer should provide policy around breach of human rights on the grounds of disability to cover all staff.
Further Reading:
Have you read our full-length article on this topic? You can find it HERE
Reach out to Resolve Legal if You Are unsure on your employment rights
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