ERA warns employer to correct company’s employment practices…

An employer has been warned by the Employment Relations Authority to correct its employment practices after the employer was investigated by a labour inspector who found multiple employment law breaches.

The ERA told the employer to pay back over $35,000 in arrears to workers after the company failed to provide them with correct holiday pay.

The employer also failed to keep proper wage, time and holiday records and failed to provide employment agreements to many of its employees.

The employer has since paid its employees the arrears owed.

The case serves as a good reminder to employers to ensure that they are complying with the minimum standards of employment. Employment law breaches can not only have monetary effects on businesses but may also damage an employer’s business and reputation.

Alan Knowsley

Employment Lawyer Wellington

Employer sentenced to home detention…

An employer has been convicted of various offences including providing employees false and misleading information on their rights and failing to pay minimum wages.  Two workers were underpaid about $14,000 over a two year period.

The employer was sentenced to five months home detention by the District Court.  Further proceedings in the Employment Relations Authority are due to be heard shortly.

Alan Knowsley

Employment Lawyer Wellington

Intellectual Property and Confidential Information – what you need to know…

Individual Employment Agreements can provide a range of protections for employers once their employees have left their employment. However, the intellectual property and confidential information of an employer will continue to be protected after employment ends even if there is no clause protecting such information in a written agreement.

Present and former employees are prevented by law from disclosing, without authorisation, trade secrets and other similar highly confidential information. The nature of the information must be such that if disclosed, the information would cause significant harm to the employer’s business. The information must not already have been made public and the employer must have limited the distribution of the information in some way. Knowledge of customers, budgets, pricing, and markets are some examples of information which may be protected in some circumstances.

When determining whether information meets the high threshold for protection, Courts will look at the nature of the information, the nature of the employment, the employee’s role and the employee’s knowledge of the nature of the information.

Employees can face criminal charges if they are found to have knowingly taken or copied trade secrets for their monetary benefit, or to cause the employer loss.

If you are unsure whether information you have would be considered confidential it is best to seek legal advice.  If you wish to protect your information from disclosure and be clear about what is protected you should include intellectual property and confidential information clauses in your employment agreements.

Mikayla Turner

Employment Lawyer Wellington

$11,000 fine for breach of ERA order...

An employer which did not pay a worker correctly was ordered to do so by the Employment Relations Authority. The ERA awarded $8000 in unpaid wages.

 

However, the employer failed to comply with the order and was fined $11,000 by the Employment Court for that breach. $6600 of the fine was ordered to be paid to the employee.

 

This is thought to be one of the biggest fines imposed on an employer in New Zealand for such a breach.

 

Alan Knowsley

Employment Lawyer Wellington

$20,000 compensation after unjustified dismissal…

The Employment Relations Authority has recently upheld a claim for unjustified dismissal after an employee was dismissed based on a poor disciplinary process. The employer was ordered to pay $20,000 in unpaid wages and compensation for hurt and humiliation.

The employee was acting in their supervisory capacity at a meeting held to address work vehicles use after hours. The meeting got heated and the incident was reported to management by the employees and the supervisor.

The ERA found the dismissal was underpinned by a flawed investigation into the allegations made against the supervisor. The human resources general manager had formed a negative view of the supervisor based on allegations, and did not conduct their own investigation. The supervisor was not given the opportunity to respond to allegations made against him until a disciplinary meeting in which, the seriousness of the ongoing investigation was not disclosed. The supervisor was dismissed at the end of the meeting.

When investigating an employee for misconduct, employers are required to carry out a procedurally fair and full investigation. The decision maker is required to come to a balanced and reasoned decision. If the decision maker relies on allegations without making their own findings and does not tell the employee of the possible consequences of the investigation, the decision will likely be found to be an unjustified.

Alan Knowsley

Employment Lawyer Wellington

Restraint of Trades – what you need to know…

It is common for employers to include non-competition provisions within individual employment agreements. However, restraint of trade clauses are generally unenforceable, unless an employer can show that a restraint is reasonably necessary to protect a proprietary interest (eg a trade secret, customer lists or budget forecasts).

A restraint of trade cannot protect an employer from mere competition. This is because the law protects an employee’s right to earn a living and their right to pursue a career in their chosen field.

In order to enforce a restraint, employers must show that the restraint is reasonable. In determining whether a restraint is reasonable, a Court would look at the employee’s role, the employer’s business, and the geographical scope, duration, and nature of the restraint. Sometimes employees will be compensated for entering into a restraint of trade clause by way of additional payments of remuneration. Compensation and acceptance of a restraint as being reasonable are also relevant factors which may be taken into account by a Court.

A Court will only enforce a restraint to the extent required to protect the employer’s proprietary interest. Employers can seek an injunction to prevent an employee from breaching a restraint of trade clause as well as compensation and/or penalties from the employee or their new employer.

If you think you, or an employee, may be in breach of a non-competition provision we recommend that you seek legal advice to establish whether the restraint is reasonable and whether the restraint can be enforced. Restraint clauses can potentially have a huge impact on an employee’s ability to gain employment after termination and can sometimes render them unemployable if prospective employers are intimidated by cumbersome restraints. 

Mikayla Turner

Employment Lawyer Wellington

Unjustified dismissal costs employer…

A worker’s personal grievance following his dismissal has led to reinstatement and an award of about 6 months wages plus $6,000 compensation after the Employment Relations Authority held the dismissal to be unjustified.

An argument had developed between the employee and supervisor during which both swore at the other.  The employee was sacked for swearing at the supervisor.  The ERA held that swearing in that workplace was common and normally condoned by the employer.  Therefore dismissing an employee for swearing was not justified when the language was not any different to that normally accepted in that workplace.

Alan Knowsley

Employment Lawyer Wellington

Flexible Working Arrangements – what you need to know…

Employees have the right to request flexible working arrangements under the Employment Relations Act.

Employees can seek to vary their hours of work, days of work, or their place of work (eg an employee can request that they be allowed to work from home).

An employee’s request for flexible working arrangements must be in writing, and must state the following:

• the name of the employee;
• the date of the request;
• the variation sought to their working arrangements;
• whether the variation is to be temporary or permanent;
• the date on which the variation should take effect/end; and
• what changes the employer may need to make if the employee’s request is approved.

A request may only be refused if it cannot be accommodated, for example if allowing the employee to work fewer hours would have a detrimental effect on the employee’s performance or quality of work.

An employee can make unlimited requests for flexible working arrangements but cannot challenge an employer’s refusal of a request unless the employer has breached their obligations under the Act in some way.

An employer must deal with a request as soon as possible, but not later than 1 month after receiving it, and must notify the employee in writing if their request has been approved or refused. If the employer refuses an employee’s request, the employer must state the reasons for their decision. If an employer does not comply with their obligations they will be liable to a penalty of up to $2,000.00, which will be payable to the employee.

If you are unsure of your obligations then we recommend you get advice before responding to the request for flexibility. You do not want to give grounds for a personal grievance by a poorly worded response.

If you think your employer has unjustifiably refused your request for flexible working arrangements it is best to get advice from an experienced employment lawyer if you have not been able to sort it out by talking with your employer.

Mikayla Turner

Employment Lawyer Wellington