New Zealand Employment Law Guide 2017 - Questions and Answers
Below is a sample of employment law questions and answers from recent cases covered in the new edition of the New Zealand Employment Law Guide which illustrate how the courts are applying the law.
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Q. The trial period in Z’s employment agreement does not mention when the trial period is to begin, though the commencement date of her employment is set out elsewhere in the agreement. Does this make the trial period invalid?
A. Recent case law makes it clear that such trial period provisions are invalid. The provision must state words to the effect that the trial period starts at the beginning of employment.
Clark v Lighthouse ECE Ltd [2016] NZERA Auckland 281.
New Zealand Employment Law Guide
Chapter 6. Employment terms and conditions for individuals | 90-day trial periods
Q. M has won her personal grievance in the Authority because her summary dismissal by her employer was found to be procedurally flawed. However, the Authority is persuaded that her conduct was reprehensible. Is a 100% reduction in remedies permitted?
A. A recent decision of the Employment Court has concluded that the Employment Relations Act does not permit complete removal of a previously established remedy and that even a 50% reduction would be a significant one.
Xtreme Dining t/a Think Steel v Dewar [2016] NZEmpC 136.
New Zealand Employment Law Guide
Chapter 14. Employment relationship problems | Contribution by the employee.
Q. W was applying for a job at X Limited. X Limited required applicants to pass a drug test. W was required to pass urine into a small cup with a technician from a specialist agency standing behind him. Does this have implications under the Privacy Act?
A. In a recent privacy case note, the Privacy Commissioner considered Rule 4 of the Health Information Privacy Code, which prevents health agencies from collecting information in a manner that is unfair or unreasonably intrusive. The Commissioner considered that a “monitored collection” such as this — ie monitoring in such a way as to detect if any adulterant was added to the urine sample but not actually watching the person pass urine — was acceptable in the circumstances.
[2016] NZ PrivCmr 9 Case Note 275234.
New Zealand Employment Law Guide
Chapter 17. Information and privacy | Manner of collecting personal information.
Q. S decides that he will record secretly a disciplinary meeting with his employer. Can such a recording be used by him in subsequent grievance proceedings?
A. The Authority recently permitted such a recording, as well as a recording of other staff talking when the person doing the recording was not present, to be used. The latter, the Authority acknowledged, would not normally be admissible, as it was not an action in good faith and denied individuals their privacy.
Firman v Insyn Ltd [2016] NZERA Christchurch 156.
New Zealand Employment Law Guide
Chapter 5. The employment law institutions | The Authority’s investigations.
Q. A complaint has been made to B’s manager that B has subjected a colleague to systematic bullying and racist jibes. B is new to the Wellington worksite, having transferred from one in Taranaki. There are suggestions, not resolved, that B might have engaged in the same behaviour in Taranaki. The manager wishes to obtain evidence both from the complainant and from staff at the Wellington and Taranaki sites. Is it acceptable for him to take evidence from the Taranaki site by phone rather than in person.
A. The law is clear that an investigation does not have to reach the evidential standards of a criminal trial. For example, uniformity in treatment of all witnesses is not usually necessary, though the circumstances might dictate otherwise.
A Ltd v H (2016) 10 NZELC ¶79-065, [2016] NZCA 419.
New Zealand Employment Law Guide.
Chapter 14. Employment relationship problems | Workplace investigations.
Q. When B’s manager concludes his investigation, what is he obliged to tell B?
A. The statutory requirement to give an employee access to information relevant to the continuation of employment and the opportunity to comment on it before a decision is reached requires the employer to give B the opportunity to comment on the consequences of a finding that there has been misconduct but it does not impose an absolute requirement to put a proposed sanction (eg dismissal) to B for comment before a final decision is made.
Buchanan v Alliance Group Ltd [2016] NZERA Christchurch 42.
New Zealand Employment Law Guide.
Chapter 14. Employment relationship problems | Workplace investigations.
Find Out More
The 2017 New Zealand Employment Law Guide is packed with essential information on all aspects of employment relations and the workplace. It provides practical, straightforward help to keep you up-to-date with current employment law and best HR practice.
Key benefits of the guide include:
- Easy to understand - makes employment law accessible and comprehensible.
- Practical - helps you quickly find information and answers on specific employment issues.
- Comprehensive - provides a thorough overview of this increasingly complex area of law and discusses more than 20 key employment law statutes.
- Real-life - reports numerous decisions of the courts and tribunals, illustrating how employment law is interpreted and applied in practice.
For more information or to order your copy of the 2017 New Zealand Employment Law Guide:
Visit: books.wolterskluwer.co.nz
Call: 0800 500 224
Email: cchbooks@cch.co.nz