Search Order For Confidential Information Ordered Against Employee…

In a recent case to come before the Employment Court, a Search Order was granted to an employer against a former employee. The employer does business in the information technology and communications field and therefore handles large amounts of confidential information.

One of the employees informed the employer he was intending to leave the business and join a competitor. The employer tried to convince the employee to stay, without success.

The employee informed the employer he was taking advice about being required to sign an acknowledgment of confidentiality as required by his current employment agreement.

This concerned the employer who arranged for the emails of the employee to be checked.

The email review revealed that the employee had forwarded two emails containing confidential client information from his work email to a private one.

Based on this information, the employer applied to the Employment Court and was granted a Search Order without notice to the employee, an injunction against the employee preventing him from further dealing with the confidential information, and an independent barrister and IT consultant were appointed.

As an employer in an area of business that handles confidential information, it is vital to know what steps can be taken when that information is at risk, particularly when preventative action needs to be taken at short notice.

Alan Knowsley

Employment Lawyer Wellington

Employer penalised after third investigation into minimum entitlement breaches...

An employer has been ordered to pay $100,000 after it breached the Holidays Act and the Minimum Wage Act. 

 

The employer failed to pay seven employees at the minimum wage, failed to pay employees for work on public holidays, and failed to pay out an employee’s holiday pay at the end of their employment. 

 

In addition to the $100,000 penalty, the employer had agreed to, and was in the process of, paying $96,500 in wage arrears to the employees. 

 

This was not the first time that the employer had been investigated for behaviour of this type.

 

While the behaviour in this case was intentional, it should be noted that an employer is still responsible (and in breach) if under-payment of minimum entitlements occur inadvertently. 

 

The rules

 

Minimum wage – the minimum wage from (1 April 2019) is $17.70 per hour.  This is set to increase in 2020 and 2021, however, these changes are subject to the Government’s yearly review.

 

Public holidays – if an employee works on a public holiday they should be paid at least time and a half, as well as receive a day in lieu (also known as an alternative holiday). 

 

If a public holiday falls on an ordinary day of work for the employee, but he or she does not work, they are entitled to be paid for that day (a paid day off). 

 

Holiday pay – an employee is entitled to at least four weeks paid leave (also known as annual leave) after they have worked for twelve months in continuous employment with the employer.

 

Ben Ruback

Employment Lawyer Wellington

Calculating pay for other leave…

Payment for public holidays, alternative holidays, sick leave and bereavement leave can either be done on a relevant daily pay rate or an average daily pay rate.  A dispute arose between employees and their employer over whether the employer could choose which rate to pay.  In their case there was a large difference between the two rates because the employees were paid partly on base salary and partly on commissions and the commissions were paid irregularly.

The matter was heard by a full Court of the Employment Court because it has wider ramifications than just the employer and employees in this case.  The Court found that if the relevant daily pay cannot be calculated, an employer must use the average daily pay calculation, but if the RDP can be calculated (even though the pay varies in the pay period) the employer has a choice of using either RDP or ADP.

The employer had chosen to use relevant daily pay because that gave a much lower calculation for leave payments than an average daily pay, which would have included the commissions paid.

The decision will have ramifications for people paid commissions or other irregular payments over and above the base salary, but each case must be decided on its own facts and that would depend on whether the relevant daily pay can be calculated or not.  If it can’t be, then the ADP must be used.

Alan Knowsley

Employment Lawyer Wellington

Poor redundancy process costs employer…

The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal following a redundancy.

The employee sought and was granted leave to go overseas for his wedding.  During his absence his tasks were done by other employees and on his return his employer decided that he did not need the employee, because the work could be done by these other employees.  He advised the employee that he was no longer required and was being made redundant. 

The employer failed to go through any consultation process with the employee and therefore the dismissal was held to be unjustified.  The employer was ordered to pay lost wages plus compensation of $7,000 for the unjustified dismissal.

If the employer had gone through a consultation process he could have reorganised his business to work with less employees and would not have been liable for any lost wages or compensation.  It pays to get the process right when looking at a possible redundancy situation.

Alan Knowsley

Employment Lawyer Wellington

Unjustified redundancy costs employer $44,000…

The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal following a redundancy process.

The employee was subject to rude comments from a co-worker about her breasts being shown on her tinder profile.  That was untrue.  The employee complained to management and the complaint was not properly investigated.  She therefore raised a personal grievance. 

Five days after raising the personal grievance she was told that her position was going to be made redundant and she therefore took a claim to the Employment Relations Authority claiming that the redundancy was not genuine.

The Employment Relations Authority agreed that the redundancy was not genuine and was designed to get rid of an employee who had raised a personal grievance.

The ERA awarded the employee $14,000 lost wages and $30,000 compensation for the unjustified dismissal.

Alan Knowsley

Employment Lawyer Wellington

Employee fined for breaching confidential settlement agreement…

The Employment Relations Authority has fined an employee $3,000 and ordered him to pay $1,800 costs after the employee breached the terms of a confidential settlement.

The settlement agreement between the employee and his employer contained a confidentiality clause and a non-disparagement clause.  Immediately after the settlement the employee told others he had won and been paid a substantial sum of money by his employer.  The employer heard about this and through its lawyer notified the employee’s lawyer that the employee should cease breaching the agreement.  A short time later in a public place the employee was disparaging the employer and other employees.

The employer therefore sought a compliance order from the Employment Relations Authority and a penalty.  The ERA found that the breaches were deliberate and imposed the $3,000 fine on the employee and also put in place a compliance order.  A breach of the compliance order could result in further penalties on the employee.

Alan Knowsley

Employment Lawyer Wellington

Employer sentenced to imprisonment for non-payment of wages…

The District Court has convicted an employer of exploitation of an employee for not paying the minimum wage and for part paying wages in food instead of cash.

The employee was employed on an hourly rate equivalent to the minimum wage, but over the time he worked he was short paid over $17,000.

The Court found that the employer had exploited the employee, who was an immigrant, and that a starting point of 16 months imprisonment was appropriate.  After various discounts, including for it being the employer’s first offence and for an early guilty plea a sentence of five months was imposed.  This was able to be converted into home detention so the employer was sentenced to five months home detention and to pay reparation to the employee of $8,845.  The employer will also be liable to pay the income tax on the short paid wages.

Alan Knowsley

Employment Lawyer Wellington

Workplace bullying leads to $12,000 fine…

In a recent case, a supervisor has been convicted and fined for his part in workplace bullying.

 

The defendant was a supervisor in a business that was carrying out work at a construction site.

 

Another employee of the business squirted flammable liquid onto an apprentice and lit it. The defendant took no steps to stop the other employee and also squirted flammable liquid onto the young apprentice.

 

Luckily the apprentice was not seriously burnt in the incident.

 

The defendant was convicted, as he owed a health and safety duty and did not take reasonable steps to stop the workplace bullying. In addition, weight was placed on his own bad behavior in participating in the bullying.

 

Despite the incident being accepted as, ‘horseplay which got out of hand’, it was held that the imbalance of power and authority between the supervisor and apprentice made it harder for the apprentice to resist what he was subjected to.

 

In the interests of general and personal deterrence, the defendant was ordered to pay a fine of $12,000.

 

The other employee is still awaiting a hearing on the charges he faces.

 

Although this case occurred in South Australia it is very relevant to the New Zealand context as the legislation is closely modelled on the relevant laws in the case.

 

It is a reminder that your duty as a manager extends to preventing such workplace bullying and not letting it happen in the workplace.

 

Alan Knowsley

Employment Lawyer