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Employers have a duty to provide employees with a safe work environment, including from unwanted behaviour of a sexual nature. Further, if an employee alleges sexual harassment by a co-employee or a customer, the employer must look into the allegation and, if satisfied that it has occurred, must take whatever steps are practicable to prevent any repetition of that behaviour.

In a recent case, the Employment Relations Authority found that an employee had been subject to sexual harassment in the workplace when the employer’s sole director placed a reciprocating sabre saw without the blade attached behind the employee’s bottom and turned it on saying “you would like that wouldn’t you.”

The employee gave evidence that he was offended by the director’s action and felt humiliated. The director said it was a moment of “friendly banter” and the ERA held that it was likely he did not intend to cause offence because he saw it as a joke. However, despite this, the ERA accepted that what the director had done was unwelcome and offensive and, although a one off, had a detrimental effect on the employee’s job satisfaction.

Consequently, the employer had not provided the employee with a safe workplace and had unjustifiably disadvantaged the employee. The employee was awarded $3,000 as compensation.

What is sexual harassment?

In the employment context, the Human Rights Act and the Employment Relations Act provide statutory definitions for sexual harassment.

An employee will have been sexually harassed in their employment if:

Their employer or a representative of their employer directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains—

- an implied or overt promise of preferential treatment in that employee’s employment; or
- an implied or overt threat of detrimental treatment in that employee’s employment; or
- an implied or overt threat about the present or future employment status of that employee; or

A co-employee or customer directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains—

- an implied or overt promise of preferential treatment in that employee’s employment; or
- an implied or overt threat of detrimental treatment in that employee’s employment; or
- an implied or overt threat about the present or future employment status of that employee; or

There is:

- conduct, words, visual material, or behaviour of a sexual nature, for example this could be sexual jokes; sexual videos; physical contact; persistent romantic or sexual requests;
- which is unwanted, unwelcome or offensive (whether or not that is conveyed to the employer or representative);
- it has a detrimental effect on the employee’s employment, job performance, or job satisfaction; and
- whether by an employer, employer’s representative, co-employee or customer.

Under this point 3, while each of these elements must be satisfied, more often than not, it is the second and third points that raise the greatest questions.

In another case, Craig v Slater, the Court had to consider whether Ms MacGregor, a press secretary for Mr Craig, found certain conduct by Mr Craig unwelcome. The Court held that, where there is a complaint of intentional sexual conduct or language and there is a power imbalance favouring the alleged perpetrator over the complainant, for example a manager and a subordinate, it is reasonable to draw a rebuttable inference that the sexual conduct or language was unwelcome. In other words, in these circumstances, a Court may infer that certain conduct or language was unwelcome but the alleged “offender” can still disprove this presumption on the evidence.

In the case, therefore, the Court found some of Mr Craig’s actions were unwelcome but others were not. For example, Mr Craig had sent a letter to Ms MacGregor, which contained statements such as, “ I have never even given you a hug. I actually regret that. There have probably been a couple of times I would have liked to…”. While the Court found that the letter contained flirtatious elements, on the evidence, it could not be established that Ms MacGregor found the letter unwelcome at the time (even if, subsequently, she considered it was so). This is because, in response to the Craig’s letter, Ms MacGregor texted him, “Thank you so much for your letter”, “Oh dear. Thinking of you…” and “. .. you really are wonderful. I hope theres (sic) time for me to loosen up your shoulders tomorrow…”

Similarly, in respect to an incident where there was some contact of a sexual nature, while Ms Macgregor gave evidence that the incident caused her to feel “scared and awful”, the Court was unable to accept that, as, following the incident, Ms MacGregor sent a text to Mr Craig that stated “… you make my heart melt… Love ya. Nanite…” Further, subsequent texts in the days after showed no antipathy towards Mr Craig and demonstrated that the personal relationship between Mr Craig and Ms MacGregor continued to be intimate.

However, in respect to statements made by Mr Craig to Ms MacGregor of a sexual nature over a subsequent 2 year period, the Court found that there were not welcomed by Ms MacGregor. This was even though Ms MacGregor did not complain about the behaviour at the time as the Court accepted that Ms MacGregor was concerned about the effect of a complaint on her employment.

When considering the final element of sexual harassment – detrimental effect – the Court held that “In a workplace, professional or social setting, detriment, disadvantage or harm to a person subjected to an (unwelcome/unwanted) intentional sexually oriented act or remark is inherent in the unwelcome, unwanted or offensive nature of the language or behaviour employed”. In other words, where conduct is unwelcome/unwanted, there will be inherent detriment, disadvantage or harm to a person subject to such, such as “having to work in the strained, tense or demeaning atmosphere inevitably created by unwelcome sexual conduct or language.”

Finally, the Court confirmed that there can be sexual harassment even if an “offender” does not know or intend that their conduct be unwanted or unwelcome or that it would cause or be likely to cause detriment. Consequently, while intentional conduct or language of a sexual nature is first required, the focus then shifts to the response of, and consequences for, the person subjected to it – did they find it unwelcome/unwanted and did they experience disadvantage from it?

Further, even a one off incident can still constitute sexual harassment, it does not need to be repeated. Even an isolated incident of sexual harassment in a workplace or professional setting, depending on its severity, could have long-term implications for a continuing work relationship.

Interestingly, while the Court noted that it is implicit in the current statutory definitions of sexual harassment that whether there was sexual harassment requires reference to the circumstances that existed at the time it is alleged to have occurred, the Court also accepted that this may change in light of greater societal awareness of the way in which employees may be disadvantaged by the exploitation of a power imbalance in a workplace. In other words, an employee, subject to a power imbalance, might not turn their mind to whether certain actions are unwelcome at the time but later, on reflection, consider they were manipulated into a consensual sexual relationship. That consideration, recognising the possible exploitation of a power imbalance, may therefore result in an extended definition of sexual harassment in the future.

Takeaways

Awareness of possible sexual harassment in the workplace has grown of late, particularly in the context of relationships where there is a power imbalance. Employers not only need to know what sexual harassment is but also need to take steps to safeguard employees against it. As a first port of call, employers should have a policy addressing sexual harassment, including what it is, practical guidance to reduce the chances of it occurring, and what employees should do if they believe they have been subject to sexual harassment. All staff, including managers, should be familiar with this policy, at the start of their employment and throughout it.

This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:

Mike Henderson-Rauter, Senior Solicitor – mikehenderson-rauter@parryfield.com
Hannah Carey, Senior Counsel – hannahcarey@parryfield.com

雇主认证工作签证（“AEWV”）将于2022年7月4日推出，以减少剥削，鼓励雇主在雇用移民之前培训、雇用和提高技新西兰本地人的技能。

它将取代六类临时工作签证：

基本技能工作签证——将于2022年7月3日关闭；
基本技能工作签证——原则上批准——将于2022年7月3日关闭；
人才（认证雇主）工作签证——已于2021 10月31日关闭；
长期技能短缺清单工作签证——已于2021 10月31日关闭；
Silver Fern求职签证——已于2021 10月7日关闭；和
Silver Fern实践经验签证——已于2021 10月31日关闭。

在使用经认可的雇主工作签证雇用移民之前，雇主必须：

1、在新体系下申请认证——即“雇主审查”；

2、申请工作检查，以确保他们想要填补的职位不能由新西兰人担任——即“工作审查”；和

3、要求移民工人申请签证——即“员工审查”。

雇主审查

任何在当前体系下的认证雇主（即与人才（雇主认证）工作和居留签证相关的雇主）如果想在新的AEWV体系下雇用移民，必须申请并满足新认证体系的政策要求。

认证有三种类型：

1、标准型 – 在任何时段能雇佣不多于5名AEWV上的移民员工；

2、批量型 – 在任何时段能雇佣6名或6名以上的AEWV移民员工；和

3、其他 – 与特许经营人和劳务公司相关。

雇主现在就可以申请认证。

雇主审查 – 标准型认证

所有希望在AEWV上雇用移民的雇主必须满足标准型认证的如下要求：

1、必须是真正在经营的生意，即：

必须在IRD上注册为雇主；和
如果是以合伙形式或个体户在经营，则企业所有人不得破产或处于无资产程序中；
并且：
在过去24个月内未发生亏损（折旧和税前）；或
过去6个月内的每个月都有正现金流；或
有足够的资本和/或外部投资（例如创始人、母公司或信托公司的资金），以确保该雇主的业务保持可行和持续性；或
有一个可靠的、不少于两年的计划（例如有已签订的业务合约）的，以确保该雇主的业务保持可行和持续性。

“可行且持续”包括能够：

履行财务义务，如支付工资或薪金以及所有其他运营成本和费用；和
购买库存（如相关）。

2、不得有违规的记录，例如：

不能在劳动监察局的雇主黑名单中；
必须遵守移民法，且不能受到因移民相关罪行被定罪而产生的永久禁令的限制；
不能被禁止担任公司负责人；和
不能是破产后重组的公司。

3、必须采取措施以尽量减少对员工的剥削，例如：

为移民员工提供完成就业学习模块的时间；
做出招聘决策的每个人都必须完成就业学习模块；
支付新西兰境内外的所有相关的招聘费用，包括广告费、中介代理费、雇主和工作审查申请费、培训和入职培训、健康和设备安全以及制服，但不包括机票；
向移民员工提供与工作相关的信息（即如何申请IRD号码）和社区援助（例如：如何开立银行账户、寻找出租房）；和
雇主不得向移民员工收取就业附加费，不得非法担保员工，也不得进行任何非法扣费。

新西兰移民局处理标准型认证申请的费用是$740.00。

雇主审查 – 批量型的认证

想要在AEWV上雇佣6名或更多移民员工的雇主必须满足标准型认证的要求。之后，可能会有一项要求，即表明他们致力于培训和提高新西兰人的技能。

新西兰移民局处理大批量型的认证申请费是$1220.00。

如果您有标准型认证，但以后想要在AEWV上雇用6名或更多移民员工，您可以升级到批量型的认证，需要支付给移民局的费用是$480.00。

雇主审查 – 其他认证

对于特许经营人：

必须满足标准型认证要求；
必须已经营至少12个月；和
必须有雇用新西兰人的历史。

新西兰移民局处理特许经营人申请的费用为$1980.00。

对于劳动力雇佣公司：

必须满足标准型认证要求；
必须将移民员工放置在具有AEWV的“合规公司”上。“合规公司”是指：
是新西兰的注册公司；
不在雇主黑名单上；和
已声明他们没有移民法相关的争议；
必须有良好的系统来监控就业和安全条件；
必须有12个月的劳动合同历史；和
公司第三方劳动力必须有至少15%是全职的新西兰人（即每周至少30小时）。

新西兰移民局处理劳工雇佣公司申请的费用是$3870.00。

对于大多数雇主来说，申请认证将是一个简单且相对较低接触度的评估。然而，新西兰移民局可能要求提供额外信息以评估申请，并可能在认证有效期间进行监控。如果新西兰移民局对雇主继续满足认证要求感到不满意，则可能撤销该雇主认证。

因此，我们建议您联系您的律师，以确保您符合要求并且遵守移民法和雇佣法的相关要求。

认证期限

在新西兰移民局批准认证申请后，雇主将获得为期12个月的认证。

延期时，将移民员工放置在第三方公司AEWV上的特许经营人和雇主将获得为期12个月的认证，所有其他雇主将获得为期24个月的认证。

工作审查

从2022年6月20日起雇主可以开始申请工作审查。

劳动力市场测试是指真诚地尝试招募新西兰公民或居民。

除非拟定工作的薪酬为每小时$55.52或以上，或同等年薪，或该职位在绿色名单上，否则所有工作都必须通过劳动力市场测试。

劳动力市场测试的有效期为六个月，自批准之日起，或直至雇主不再持有认证，以较早者为准。

员工审查

移民员工必须满足：

品行要求，例如：从未被判处5年或5年以上有期徒刑；
健康要求，例如：不太可能对新西兰的卫生服务或特殊教育服务造成重大支出或需求；和
证书和工作经验要求。

薪酬

拟议的工作合同的薪酬必须等于或高于工资中位数，即每小时$27.76，且不能低于该职业在新西兰的市场工资率。

如果工作需要有其他没有在ANZSCO职业中描述的技能来完成，则雇主提供的薪酬必须高于该工作的市场工资率。

但是，建筑和基础设施、旅游和酒店业以及护理劳动力部门的特定工作不受工资中位数的限制。

AEWV的货币

AEWV签证可在提供就业的期限内授予，最多可以是：

3年，如果时薪达到中位数；或
2年，如果工资低于工资中位数，除非这2年的签证会导致签证持有人超过停工条件下允许的最长期限（即2年）。

如果工资低于工资中位数的2年工作签证会导致签证持有人超过停工设置允许的最长期限（即2年），则该签证只能在最长期限的剩余时间内发放。

审批时间

预计的审批时间范围是：

标准型和批量型认证 – 10个工作日
工作审查 – 10个工作日
员工审查/AEWV – 20个工作日

请注意，以上并不能替代法律建议，您应该联系您的律师了解您的具体情况。

如果您想开始认证申请流程和工作审查流程，请电话联系我们， 03 348 8480，或通过电子邮件发送至我们的邮箱immigration@parryfield.com

2022年6月8十

The Accredited Employer Work Visa (“AEWV”) will be introduced on 4 July 2022 to reduce exploitation and encourage employers to train, upskill and hire New Zealand workers before hiring migrants.

It will replace six temporary work visa categories:

Essential Skills Work Visa – will close on 3 July 2022;
Essential Skills Work Visa – Approval in Principle – will close on 3 July 2022;
Talent (Accredited Employer) Work Visa – closed on 31 October 2021;
Long Term Skills Shortage List Work Visa – closed on 31 October 2021;
Silver Fern Job Search Visa – closed on 7 October 2021; and
Silver Fern Practical Experience Visa – closed on 31 October 2021.

Before hiring a migrant on the Accredited Employer Work Visa, an employer will have to:

apply for accreditation under the new system – “the Employer Check”;
apply for a job check to make sure the role they want to fill cannot be done by New Zealanders – “the Job Check”; and
request a migrant worker to apply for a visa – “the Worker Check”.

The Employer Check

Any employers accredited under the current system (i.e. in relation to the Talent (Accredited Employer) Work and Resident Visas) will have to apply and meet the policy requirements of the new accreditation system, if they want to hire migrants on the new AEWV.

There are 3 types of accreditation:

Standard – to hire 5 migrant workers on AEWVs at any one time;
High-volume – to hire 6 or more migrant workers on AEWVs at any one time; and
Other – in relation to Franchisees and Labour Hire Companies.

An employer is able to apply for accreditation now.

The Employer Check – Standard Accreditation

ALL employers who want to hire migrants on AEWVs have to meet the standard accreditation requirements, which are as follows:

Must be a genuinely operating business, i.e.:

Must be registered as an employer with IRD; and
If the employer is a partnership or sole trader, the business owner(s) must not be bankrupt or subject to a No Asset Procedure;
AND
- have not made a loss (before depreciation and tax) over the last 24 months; OR
- have a positive cash flow for each of the last 6 months; OR
- have sufficient capital and/or external investment (for example funding from a founder, parent company or trust) to ensure the employer’s business remains viable and ongoing; OR
- have a credible, minimum two-year plan (for example by having contracts for work) to ensure the employer’s business remains viable and ongoing.

“Viable and ongoing” includes being able to:

meet financial obligations such as paying wages or salaries and all other operating costs and expenses; and
purchase inventory (if relevant).

Must not have a non-compliance record, i.e.:

Not be included in the Labour Inspectorate stand down list;
Must be compliant with immigration law and not be subject to a permanent ban following a conviction for an immigration related offence(s);
Not be prohibited from being a director; and
Must not be a phoenix company.

Must take steps to minimise worker exploitation, i.e.:

Provide migrant workers with time to complete Employment Learning Modules;
Everyone who makes recruitment decisions must complete Employment Learning Modules;
Pay all recruitment costs inside and outside New Zealand, including advertising, agency fees, employer and job check applications, training and induction, health and safety equipment, and uniforms, BUT excluding airfares;
Provide migrant workers with work-related information (i.e. how to get an IRD number) and community assistance (i.e. how to open a bank account, find rental accommodation); and
Employer cannot receive a premium for employment, unlawfully bond the employee, nor make any unlawful deductions.

Immigration New Zealand’s fee to process a standard accreditation application is $740.

The Employer Check – High-Volume Accreditation

Employers who want to hire 6 or more migrants on AEWVs have to meet the standard accreditation requirements. Later, there may be a requirement to show that they have a commitment to train and upskill New Zealanders.

Immigration New Zealand’s fee to process a high-volume accreditation application is $1220.

If you have standard accreditation, however later want to hire 5 or more migrants on AEWVs, you can upgrade to high volume accreditation for a fee. That fee is $480.

The Employer Check – Other Accreditation

Franchisees:

Must meet the standard accreditation requirements;
Must have been operating for at least 12 months; and
Must have a history of hiring New Zealanders.

Immigration New Zealand’s fee to process a franchisee application is $1980.

Labour hire companies:

Must meet the standard accreditation requirements;
Must place migrants on AEWVs with “compliant businesses”. A “compliant business” is a business:
- that has an NZBN;
- that is not on the stand-down list; and
- has declared that they do not have immigration-related issues;
Must have good systems to monitor employment and safety conditions;
Must have a 12 month labour contracting history; and
Must have at least 15% of the company’s labour workforce placed with third parties be New Zealanders in full-time employment (i.e. at least 30 hours a week).

Immigration New Zealand’s fee to process a labour hire company application is $3870.

For most employers, accreditation will be a simple and relatively low-touch assessment. However, Immigration New Zealand may request additional information to assess an application and may undertake monitoring during the accreditation period. If Immigration New Zealand is not satisfied an employer has continued to meet the requirements, the employer’s accreditation status may be revoked.

Therefore, we advise that you contact your lawyer to ensure you will meet the requirements and are compliant with immigration law and employment law.

Accreditation Period

When an accreditation application is approved by Immigration New Zealand, an employer will receive accreditation for 12 months.

At renewal, franchisees and employers that want to place migrants on AEWVs with third parties will be granted accreditation for a further 12 months, and all other employers will be granted accreditation for 24 months.

The Job Check

An employer can apply for a job check from 20 June 2022.

A labour market test is a genuine attempt to recruit New Zealand citizen or resident.

The labour market test must be met for all jobs, except where the remuneration for the proposed employment is $55.52 per hour or above, or the equivalent annual salary, or where the role is on the Green List.

A labour market test will be valid for six months from the date that it is approved or until the employer no longer holds accreditation, whichever is earlier.

The Worker Check

The worker must meet:

Character requirements, for example, not have been sentenced to a prison term of 5 years or more;
Health requirements, for example, be unlikely to impose significant costs or demands on New Zealand’s health services or special education services; and
Credential and experience requirements.

Remuneration

The remuneration for the proposed employment must be at or above the median wage, which will be $27.76 per hour, and must not be less than the New Zealand market rate of pay for that occupation.

Where other skills or specifications are needed to perform the job that are not described in the ANZSCO occupation, the remuneration offered must reflect those requirements by being above what would otherwise be the market rate for that job.

However, specific jobs in construction and infrastructure, tourism and hospitality, and care workforce sector are exempt from the median wage threshold

Currency of AEWVs

An AEWV may be granted for the period for which the employment is offered, up to a maximum of:

3 years for employment paid at or above the median wage; or
2 years for employment paid below the median wage, unless a 2 year visa would result in the holder exceeding the maximum period allowed under the stand-down settings (which is 2 years).

Where the grant of a 2 year visa for employment paid below the median wage would result in the holder exceeding the maximum period allowed under the stand-down settings (which is 2 years), the visa may only be granted for the remainder of the maximum period.

Processing Timeframes

The estimated application processing timeframes are:

standard and high-volume accreditation – 10 working days
job check – 10 working days
migrant check/AEWV – 20 working days

Please note that this is not a substitute for legal advice and you should contact your lawyer about your specific situation.

If you would like to start the application process for accreditation and job check process, please feel free to contact us on 03 348 8480 or by email to immigration@parryfield.com.

10 June 2022

When an employee is not performing as expected, what should an employer do? Are there steps an employer should take or, conversely, not take? This article considers this issue further, including some recommended steps at the start of an employment relationship, during and, if required, the end.

Starting point – the importance of the job description

It is much more difficult to manage an employee’s performance, and for an employee to know what is expected of them, if job descriptions and job expectations are not clear from the start. What does success look like in the employee’s job?

At a minimum we recommend that all employment agreements have good job descriptions, which not only set out what tasks/jobs an employee will undertake but also what expected performance looks like. For example, a performance objective might be “deliver projects on time and within budget”.

Probationary periods – are these useful?

A probationary period is a period of time to enable an employer to “assess the suitability of the employee . . . normally in terms of skills, diligence and personality.”

Unlike 90 day trial periods, probationary periods can be for any length of time, although we often see them set at 3 months. They can also be used if an employee is changing from one role in a business to another. However, they must be specifically included in the employee’s employment agreement (whether for a new role or a changed role) in order to be utilised.

While a fair process must still be followed over a probationary period, particularly leading up to any dismissal, that process is qualified somewhat by the fact that the employee is considered to be “on notice” over this time that they are being specifically assessed and that permanent employment will only be confirmed if the requisite standards are met.

That means that the process does not have to be as stringent as it would be once a probationary period ends (or if there is no probationary period), although it does, as noted, still need to be fair. For this reason, probationary periods remain useful as part of the employment relationship.

However, we recommend that, where employers use probationary periods, they run for longer than 3 months, say, for example 6 months. Sometimes issues with an employee’s performance do not surface straight away and, even if they do, employers are still required, over probationary periods, to do the following, which takes time:

Advise the employee of any concerns with performance, advise of any necessary improvements, and warn of possible consequences if performance does not improve; and
If performance does not improve, give fair warning of termination.

In addition, just because an employee is not meeting standards to begin with, this does not mean that, with additional time and assistance, they cannot later do so. Therefore, it’s important to have sufficient time to assess an employee’s performance and assist them to improve, before the probationary period expires, rather than rush through this process.

When performance falls short – can employer have an informal discussion with their employee?

Regardless of whether an employee has a probationary period or not, employers have a duty of good faith to bring to an employee’s attention areas where they are not performing as needed. Raising matters also has the benefit of (more likely) identifying such things as if the employee actually understands what is expected of them, if they might need additional training, or if there are any issues with the employer’s processes, systems or workplace that might be impacting on the employee’s performance. Further, in some cases, an informal chat may be all that is needed for an employee’s performance to improve.

To start with, raising performance concerns with an employee does not necessarily need to be done in a formal way. A formal process is needed where there may be a disciplinary outcome, like a warning, to ensure fairness to the employee. Formal processes are discussed further below. Employers should also check the employee’s employment agreement and their policies, as these may set out certain steps that need to be followed where there are performance concerns. In that case, those steps should be followed.

However, where an employment agreement/policy does not prescribe a particular process and an employer just wants to let an employee know, for example, that an employee’s performance is falling short in some way and to assist them to improve, then this can generally be raised in a less formal way. It is prudent however to let the employee know at the start of any discussion that it is not a disciplinary process. All discussions should also still be held privately, rather than in front of other employees.

In these discussions, the employer can explore with the employee:

what the employer’s expectations are, working to be as clear and precise as possible;
why they consider the employee’s performance is falling short;
is there anything affecting the employee’s performance, either at work or outside work, that needs to be addressed first;
does the employee understand what is expected of them; and
can the employer provide any additional assistance or training to help the employee improve.

A written record should be kept of these discussions.

The employer should then continue to check in regularly with the employee, giving additional feedback on their work and working with them to try and help them meet expectations.

Formal/disciplinary processes – when are these needed?

Sometimes, however, despite informal chats with an employee, their performance still continues to fall short. In that case, it is not helpful for either the employer or the employee to let matters drift on.

In these cases, we recommend an employer have one final discussion with their employee, letting them know that, if their performance continues below expectation, the employee may need to start a disciplinary process. Sometimes this is enough to result in improved performance but it also ensures there are no surprises if an employer does need to move to a disciplinary process. Again, a written record should be kept of this discussion.

A disciplinary process is a process which involves certain steps to ensure that it is carried out fairly. This is because a disciplinary process could end in disciplinary action, including possible dismissal (depending on the circumstances).

At a minimum, the employer needs to:

Write a letter to the employee outlining the specific ongoing issues with the employee’s performance and proposed next steps and provide the employee with all relevant information (such as any documents which support the employer’s concerns).
In terms of proposed next steps, this will usually include setting out the further time period the employer proposes to give the employee to improve; the targets or objectives the employee need to meet over this time, and the further support the employer will give the employee. This is often referred to as a Performance Improvement Plan or a PIP.

Ideally performance expectations should be holistic to ensure that it is clear that performance needs to be achieved across the board. This means that, even if an employee improves in one area, the PIP (if it proceeds) does not need to start again if the employee is not performing in another area.

Advise the employee that, if the proposed next steps proceed and the employee does not sufficiently improve, disciplinary action may be taken, up to and including possible dismissal (if this is a possibility).|
Give the employee a reasonable opportunity to consider the concerns raised and proposed next steps, including time to obtain independent advice, before the employer meets with the employee again.
Ensure the employee knows that they can have a support person with them at all meetings.
Arrange a meeting with the employee (and their support person) to give them an opportunity to respond to the concerns raised and the proposed PIP.

The employee’s response should then be considered and, if it does not address the concerns raised or raise other matters which reasonably need to be addressed first (e.g. issues with the workplace that may be affecting performance), then the next step would be to proceed with the PIP.

However, employers should take on board any comments the employee raises about the PIP, particularly about the length of time the employee has to show improvement, and amend the PIP if necessary.

The finalised PIP should then be confirmed with the employee, including any changes made as a result of the employee’s feedback.

During the PIP, the employer still needs to continue to give feedback and provide any additional training or support that is reasonably necessary.

However, if the employee is still not improving, progressive warnings can be provided by the employer. These warnings should be clear as to the issues and what could be the consequences if performance does not improve or if performance improves but then regresses again. Further, warnings should be confirmed in writing, to reduce confusion about the warning given, and future expectations.

Unless an employment agreement and/or policies set out how many warnings should be given, it’s prudent to at least provide one written warning and one final written warning in the case of possible dismissal.

Even if an employee’s performance improves significantly, the PIP can continue to its conclusion, although no warnings would be given along the way.

Where a PIP meets these requirements, the employer may be justified at the end of the PIP in taking disciplinary action, up to and including dismissal, if the employee has still not met the required standard. The employer does have to show however that reasonable alternatives to dismissal were explored.

Alternatively, an employer may only issue a warning or extend the PIP, if, for example, the employee has shown improvement such that, with further time, it’s possible that they might meet the employer’s expectations.

Along the way we recommend that, as much as possible, the same personnel deal with performance issues, to help ensure consistency across the process.

Case example – correct process

A case of where an employer used a fair and reasonable process is Yan v Commissioner of Inland Revenue:

Reasons for dissatisfaction were provided and were discussed with the employee;
Detailed explanations were provided regarding improvements required;
Performance management periods were defined;
There was comprehensive and objective assessment against targets;
The employee was allowed opportunity for feedback;
Feedback was considered before the employer took action; and
Alternatives to dismissal such as possible redeployment were considered.

Case example – incorrect process

The case of Trotter v Telecom Corporation of New Zealand provides an example of where a performance management process fell short:

The employee was given two weeks to improve for matters that the employer considered were severe performance issues;
No support or education was given;
The employer predetermined the dismissal, evidenced by them writing a letter of dismissal prior to the final interview. The final interview should have actually enabled the employee to demonstrate what steps he had taken to improve his performance and any further action he planned to take.

But doesn’t this all take too much time?

Following the correct process, does take time. Sometimes employers ask us if there is a quicker way? Can’t they just have an “off the record” discussion with their employee?

In some instances, employers and employees do, in the context of performance issues, reach a mutual agreement to end the employment relationship. However, these sorts of discussions need to be handed very carefully because they can lead to legal liability. Simply calling a discussion “off the record” is not enough. We always advise employers to seek legal advice before they engage in any such discussions.

Takeaways

Having good performance processes not only improves the likelihood of having well performing employee but also helps ensure employees are treated fairly. Make sure performance expectations are clear from the start and the employee is ‘set up’ to succeed as much as possible. Where concerns arise, address these early and clearly and provide support and feedback along the way. Also make sure you follow your employment agreements and/or policies. If performance still does not improve, this may ultimately be a justifiable reason to dismiss an employee, however, a fair and reasonable process still needs to be followed first to give an employee a fair chance to improve and to fairly warn the employee of what the consequences might be, if performance remains below par. If an “off the record” discussion is being contemplated, make sure you get legal advice first.

This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:

Mike Henderson-Rauter, Senior Solicitor – mikehenderson-rauter@parryfield.com
Hannah Carey, Senior Counsel – hannahcarey@parryfield.com

In the midst of a meeting to discuss an employee’s performance, the employee becomes agitated and upset. They advise they are struggling in their role and then they announce their resignation. Can the employer rely on this resignation or are they required to give the employee a “cooling off” period to consider their decision?

Two recent cases in the Employment Court have cast doubt on “cooling off” periods always being required after “heat of the moment” resignations by employees.

In the first case, Mikes Transport Warehouse Limited v Vermuelen, it was held that the key question is whether, looking at the facts from the perspective of someone standing in the employee’s shoes, it can be said that the employee resigned at the time, rather than simply whether the resignation occurred in a moment of distress, anger or frustration or whether a fair and reasonable employer could have accepted such a resignation.

In other words, just because a resignation occurred in those circumstances, this does not mean that it was not a valid resignation. A resignation does not need to be justified, demonstrably sensible or well thought through. However, would someone in the employee’s shoes at the time consider that their employment had ended?

The Court also noted that, if there are concerns about the circumstances of the resignation, these can still be considered in the context of the law of “constructive dismissal”, such as whether the employee was effectively compelled into resigning or given the choice between resigning or being dismissed.

Further, even if there is a valid resignation, this does not stop the parties later agreeing to the employer re-engaging the employee if that is what they want to do after a time of reflection.

The principles from Vermuelen were applied in Urban Décor Ltd v Yu. In that case, two employees said that they quit after a heated exchange with their employer, they then took their bags and left the workplace and did not return for the rest of the day. The employees did not clock out and no contact was made until after work. In addition, when contact was made, it did not indicate an intention to return to work. Mr Han sent the two employees dismissals letters early the next morning.

The Court held that, on an objective basis, “the facts support a finding that Ms Yu and Ms Jin resigned. Mr Han’s dismissal letters do not, and cannot, turn those resignations into dismissals; nor do his subsequent statements where he admits having dismissed them”.

Key takeaways

Despite the above, there is still merit in employers giving employees a “cooling off’ period if there is a heat of the moment resignation and then checking in with the employee to see if the resignation stands. This is particularly given that an allegation of constructive dismissal is still a possibility.

However, what these cases do suggest is that, if an employer finds themself in a situation where they did not give an employee a cooling off period, this will not necessarily stop the employee being found to have resigned.

This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:

Mike Henderson-Rauter, Senior Solicitor – mikehenderson-rauter@parryfield.com
Hannah Carey, Senior Counsel – hannahcarey@parryfield.com

Mr S was an employee, born and bred in New Zealand but of Indian heritage. During the course of his 3 months’ employment, he was called “little Injun” by his employer, including in front of others, and, in another incident, his employer, again in front of others, ridiculed how “Indians bobbed their heads in their conversations”. The employer proceeded to show a You Tube video clip that made fun of Indians doing that. When Mr S raised these issues with a more senior employee, he told him it was not worth raising the issue with his employer and that it would be easier to instead tolerate the racist comments.

Mr S brought a personal grievance on the grounds of racial harassment. Mr S’s employer maintained that they not know that what they were saying was offensive and they never intended to hurt or offend Mr S. They also claimed that Mr S joined in the office banter and referred to himself as their “chai wallah” and that Mr S himself made jokes about Indians on social media. Mr S agreed that he participated in office banter but said it was his attempt to “take the sting” out of the comments and language being used. He further said he didn’t speak up during his employment because his employment agreement contained a 90-day trial clause and he was concerned about the “authoritarian way” the business was run. In relation to social media comments, he said that this was communications with close friends with whom he had a shared culture.

Was this racial harassment?

What is racial harassment?

Racial harassment is defined in the Employment Relations Act 2000 as a situation where an employer (or the employer’s representative) uses language that directly or indirectly:

expresses hostility against, or brings into contempt or ridicule, the employee on the ground of race, colour, or ethnic or national origins of the employee; and
is hurtful or offensive to the employee (whether or not that is conveyed to the employer or representative); and
has, either by its nature or through repetition, a detrimental effect on the employee’s employment, job performance, or job satisfaction.

A similar definition is found in the Human Rights Act 1993.

An employee may raise a personal grievance with the Employment Relations Authority or lay a complaint with the Human Rights Commission in respect of any racial harassment they may have suffered.

Examples where racial harassment has been found

In the above example, racial harassment was established. It was not a defence that the employer had not intended to offend. Nor was it a defence that Mr S had not advised his employer of the offence and hurt he had experienced at the language used. This was considered understandable where he was subject to a 90 day trial. Further, the fact Mr S also participated in the office banter and made comments about Indians himself on social media was not determinative. The Authority accepted he felt worn down by his employer’s language such that he could not combat it and felt he had to join in. Further, the Authority appeared to accept Mr S’s explanation for his comments on social media.

In all cases, the Authority found that the employer’s comments were offensive and unwelcome. It found Mr S was exposed, throughout the majority of employment, to language that brought him into contempt or ridicule on the basis of his race. He was offended and hurt by that language and the ongoing nature of his employer’s use of that language affected his enjoyment of his job.

As Mr S had not lost wages as a result of the harassment, he was not awarded lost remuneration but he was awarded $10,000 for hurt, humiliation and distress (this decision was in 2018 – a greater award might possibly be made now).

Other examples:

an employee who was called a “dumb Irish bastard” and a “thieving Irish bastard’ by a fellow employee, who was found to be a representative of the employer – these were examples of hostility and bringing the employee into contempt and ridicule on the grounds of his national origins, which caused distress to the employee and detrimentally affected his job satisfaction.
an employer who was found to have attributed issues in the employee’s written work to his race or ethnicity was also found to have racially harassed the employee. The employee was ridiculed on the grounds of his race or ethnic origin and there was no evidential basis to attribute issues with his work to his race or ethnic background.

Examples where racial harassment has not been found

an employer, as part of an informal performance improvement meeting, commented that the employee spoke better English than some other Indians and also noted his lack of an accent. It was held that, while the comments may have caused the employee some offence, they did not constitute racial harassment. This was because the comments were not made in a hostile or contemptuous way and they did not ridicule the Indian race or the employee.
an employee who was referred to as a “nigger” by his manager was not racially harassed, as the employee engaged in similar language in the workplace – he was part of the “language culture”. While the language used was “racial language”, the Authority held that, in order for racial harassment to be made out, the language would need to be hurtful or offensive to the employee. In addition, that language would need to cause detriment to the employee’s employment, job performance, or job satisfaction. In this case, there was insufficient evidence of this, it being apparent that the employee encouraged the use of the language, and in fact engaged in it, himself.

Takeaways

For racial harassment to be made out, the comments by the employer must be delivered in a hostile way or ridicule the employee on the grounds of race, colour, or ethnic or national origins of the employee. In addition, the comments must be offensive to the employee and must have a detrimental effect on the employee’s employment, job performance, or job satisfaction. This can be a relatively high standard to meet, shown by the above cases.

Nonetheless, employers should take allegations of racial harassment very seriously, including appropriately investigating concerns raised and taking all reasonably practicable steps to safeguard employees from being subject to the same conduct again. Employers should also have a clear racial harassment prevention policy in place, developed in consultation with employees so as to reflect their workplace and which both employees and the employer are familiar with (rather than it being filed up away in a drawer, never to be looked at again). One option is to provide a copy to employees at the start of an employee’s employment or attach it to their employment agreement.

This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:

Mike Henderson-Rauter, Senior Solicitor – mikehenderson-rauter@parryfield.com
Hannah Carey, Senior Counsel – hannahcarey@parryfield.com

Sometimes a situation arises where an employee has built up a large annual leave balance. Not only might this be a potential financial liability for an employer, given annual leave needs to be paid out at the end of employment, but health and safety concerns might arise, such as is the employee having adequate breaks from work? An employee might conversely want to use their leave but find that their employer will not agree. What can employers and employees do in this situation?

Annual leave rights and obligations are covered by the Holidays Act 2003. The Act provides several ways in which accumulated annual leave can be addressed.

When can an employee take leave?

The Holidays Act 2003 states that “An employer must allow an employee to take annual holidays within 12 months after the date on which the employee’s entitlement to the holidays arose”. This does not create a positive obligation on an employer to ensure an employee actually takes the leave but it does mean that an employer must make it possible for an employee to be able to take leave within the 12 months it falls due. Failure to do so could, for example, open up employers to action by the Labour Inspectorate; the imposition of a financial penalty; and/or a personal grievance claim.

Separately, employers can ask an employee to use their annual leave which has fallen due (e.g. within 12 months of employment starting and every 12 months after) and, if agreement is not reached, direct the employee to use their leave on no less than 14 days’ notice. However, employers cannot direct an employee to take annual leave in advance (e.g. annual leave which has not yet fallen due).

In trying to reach agreement, consultation and negotiation should be genuine. While the following case was based on the employee’s employment agreement, the wording was not dissimilar to the requirements of the Holidays Act.

In the case, the agreement provided that timing of leave was to be agreed between the parties but, where agreement was not reached, was at the employer’s discretion. The employee, a urologist, accrued an abundance of annual leave over his employment. Following the employer locating a locum, they discussed with the employee the possibility of him taking leave for six months, commencing the following month. The employee was not keen on this idea due to timing and, after some discussion, the employer fixed the leave to be taken over the following five months. A claim for unjustifiable disadvantage was made out in the (then) Employment Tribunal because the employer failed to meet their obligation to consult and negotiate. This was because they had not allowed the employee input into the timing of the locum’s visit and, in the circumstances, they had not genuinely consulting with the employee when fixing the timing of the leave.

Further in terms of agreement, if an employee suggests a proposal for when they will use their leave, such as one week now, one week in a month, and one week a month later, the employer must not unreasonably withhold consent. In other words, if an employer declines, they must have reasonable grounds to do so. In one case, an employer was found to be in breach of this where they declined consent to an employee who asked to take leave in 3 months’ time because the employer did not yet have an employee to cover the employee requesting leave. In that case, the employee had been employed for over 12 months and had taken no leave to that point. While this was not stated expressly, the Authority appeared to consider that the employer’s lack of staff cover was, in this case, not sufficient to reasonably decline the leave request. However, in other circumstances, possible grounds could include when an employer cannot reorganise work among existing staff, the employer cannot recruit additional staff, or there is a planned structural change.

Finally if an employee wants a longer break at one time, employers must allow employees to take at least 2 weeks’ leave as a continuous block in every 12 month period.

Paying out leave in cash

An employee can ask for one week’s annual leave to be cashed up but an employer cannot force an employee to do so. Any request by an employee can also only occur once within one 12-month period. The employer does not have to agree to this, so long as they have considered it within a reasonable time and advised the employee of their decision in writing. There is no obligation on employers to provide a reason for their decision.

Can annual leave expire?

Annual leave entitlements do not expire if they are not taken. The Holidays Act provides that an employee’s entitlement to annual holidays remains in force until either the employee has taken the entitlement as paid holidays or the leave has been paid out, such as on termination of employment. Thus, even if annual holidays are not taken within a 12 month period, employees are still entitled to the leave. This is despite what an employment agreement states; employers cannot contract out of the Holidays Act.

After employment ends

Where the employee’s employment ends, the employer will have to pay that employee:

8% of their gross earnings since their last entitlement date, less any amount paid for holidays taken in advance; AND
The value of any annual holidays which have already fallen due but not taken, paid at the rate of the greater of ordinary weekly pay as at the date of the end of the employee’s employment or average weekly earnings during the 12 months immediately before the end of the last pay period before the end of the employee’s employment.

Why taking leave is important

Both employers and employees have a duty to take steps to protect employee(s) health and safety. Taking breaks away from the workplace is one way to help safeguard employees against the effects of overwork, as well as to reduce the likelihood of fatigue related mistakes or incidences. Employers and employees should therefore work together to make sure that regular breaks are taken, utilising some or all of the above mechanisms.

This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:

Mike Henderson-Rauter, Senior Solicitor – mikehenderson-rauter@parryfield.com
Hannah Carey, Senior Counsel – hannahcarey@parryfield.com

When an employer is considering making an employee(s) redundant, there are three key steps they need to get right:

Following the terms of the employee’s employment or collective agreement and, in particular, what it says about making employees redundant.
Making sure that the reasons for the redundancy are “genuine”, rather than, for example, simply a cover to remove an underperforming employee. In other words, being able to demonstrate that any redundancy is genuinely justified on the basis of valid commercial grounds.
Following a fair and reasonable process.

At the centre of this is being clear from the start about why a redundancy may be needed in the first place.

This may seem obvious but not infrequently we see employers coming unstuck at this point. They are unclear and/or imprecise, sometimes in their own minds but, more frequently, when communicating with the employee, about why exactly they are proposing to remove a role and what evidence they are relying on to back up that proposal.

The law is clear that it is not enough for an employer to say or show that it genuinely believes a redundancy is required. While an employer is entitled to make their business more efficient, whether or not the business is in financial dire straits or not, an employer must still:

Be able to clearly advise the employee, and with sufficient detail, about what the relevant issues are, giving rise to a possible redundancy;
Provide the employee with accurate evidence substantiating those issues; and
Give employees a real opportunity to be able to comment on those issues and, in particular, put forward alternative proposals if they are able to.

This means that, in general, it is not enough to simply advise the employee in broad, imprecise terms, as to why a redundancy is proposed. For example, to simply say that the employer has reviewed the business and redundancies are necessary to “streamline” the business, improve efficiencies or to save costs.

While those – making a business more efficient or saving costs – can be valid reasons for a restructure, the employee is entitled to know more on the how and why. The courts have been clear that:

“there must be made available to the other party sufficient information to enable it to be adequately informed so as to be able to make intelligent and useful responses” or, put another way, there must be “the provision of sufficient information to fully appreciate the proposal being made and the consequences of it and, secondly, an opportunity to consider that information and, thirdly, a real opportunity to have input into the process before a final decision is made.”

Consequently, in the example given, this may include providing information on:

What the employer’s review of the business showed? What issues were revealed? For example, “over the past 6 months, we have experienced an X% downturn in work in these areas. This is as a result of the loss of the X and Y contracts, which, on re-application, were re-tendered to Z Group. The effect of this on the company is that revenue has dropped over the same period by an average of by X% and productivity by X%. We are anticipating that these figures will continue over the next Y months because ….”
The evidence the employer has that demonstrate those issues, such as current and projected revenue or productivity figures?
What does the old and new employee structure look like under the restructuring proposal? For example, are other roles proposed to be removed? Who will undertake the employee’s existing role (if the duties under it are still required by the employer)?
How would removing the employee’s role help address the issues identified by the employer?
Have any options, other than removing the employee’s role, already been considered?
Could the employee be redeployed?

In our experience, where employers get this right, it reduces an employee’s disquiet and, consequently, the likelihood of an employment relationship issue arising. It also helps employers make better decisions, more accurately identifying what changes are actually needed and how best to implement them.

Finally, there are some limits on the information employers are required to provide employees. For example, information which would breach the Privacy Act 2020 or commercially sensitive material, the disclosure of which would unreasonably prejudice the employer’s commercial position.

In these cases, certain information may need to be redacted, before being provided to the employee or, in some circumstances, there may be grounds to withhold particular information altogether. We recommend however that employer gets advice before doing so. It is not enough for an employer to simply say they believe withholding information is necessary. That decision can also be scrutinised and will need to “stack up”.

This article is not a substitute for legal advice and you should contact your lawyer about your specific situation. We would be happy to assist you with your employment matters.

Please feel free to contact Mike Henderson-Rauter at mikehenderson-rauter@parryfield.com or Hannah Carey at hannahcarey@parryfield.com.

In June 2012 we posted an article highlighting the importance of employers, who want to rely on a 90 day trial period, ensuring that all new employees sign their employment agreement containing the trial period before their first day of work. The Employment Court has now set out a further requirement, namely that trial periods in employment agreements must be provided to prospective employees at the same time as, and as part of, making an offer of employment to the proposed employee in order for an employer to rely on them.

In Blackmore v Honick, the employee was offered employment in writing and accepted such in writing (by email). The written offer set out a number of the terms of employment and stated that a written contract, containing those terms, would be provided to the employee after he accepted the position. No mention was made of a trial period. He subsequently resigned from his previous employment and commenced work with the employer. At that time (shortly after he started work) he was presented with an employment agreement containing the trial period which he signed. Some time later but before the end of the 90 day trial period, the employer terminated his employment in reliance on the trial period.

The Employment Court subsequently held the employer could not rely on the trial period when dismissing the employee as the employee was already an employee when he signed the agreement.* The Court stated that, in the context of a trial period, an employment relationship begins as soon as an employee is offered and accepts employment. As the employee had accepted the job offer prior to signing the employment agreement, he was not bound by the trial period contained in it.

The Court held further that, in general, in order for employees to be regarded as not having been previously employed by an employer, the trial period must be agreed in writing before the employee begins work. More particularly, trial periods in employment agreements must be provided to prospective employees at the same time as, and as part of, making an offer of employment to the proposed employee in order for an employer to rely on them.

The further moral of the story therefore is if you, as an employer, want to safeguard your ability to rely on a 90 day trial period, make sure that any offer of employment to a new employee is accompanied by something in writing (preferably the employment agreement) setting out the inclusion in the offer of a 90 day trial period, and its scope/terms.

This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:

Mike Henderson-Rauter, Senior Solicitor – mikehenderson-rauter@parryfield.com
Hannah Carey, Senior Counsel – hannahcarey@parryfield.com

* The Employment Relations Act provides that a 90 day trial period can only apply in respect to new employees.

The law around 90 day trial periods continues to develop. We have previously posted articles on the importance of having an employee sign their employment agreement before their first day of work and also agreeing to a trial period before accepting an actual offer of employment.

A recent case – Allan v Mobile Shop Limited & Anor [[2012] NZERA Auckland 430; 30/11/2012; R Larmer] – has now confirmed the importance of also ensuring a prospective employee is given a real and reasonable opportunity to obtain legal advice on their employment agreement, including the trial period, prior to signing the agreement. If an employer does not, they may not be able to rely on the trial period, even if they have met all other pre-requisites.

The Facts

In the case, the employee claimed he was unjustifiably dismissed from his employment. One of the employer’s arguments was that the employee was prevented from raising a personal grievance due to the 90 day trial period in his employment agreement.

The employee was offered employment but it was not until approximately 2 week’s later that an employment agreement was signed. He then signed the agreement within 20 minutes of receiving it from the employer and was not advised of his right to seek independent legal advice. He started work the next day. His employment was later terminated on the grounds of poor performance.

The Outcome

The Employment Relations Authority considered that the dismissal was procedurally and substantively unjustified for a variety of reasons. Despite there being a trial period in the employment agreement that complied with the Employment Relations Act 2000, the Authority decided that the lack of time given to the employee to seek independent legal advice on the terms of the agreement prior to signing it meant that the trial period clause should be struck out of the agreement.

The Authority confirmed that there is an obligation on an employer to provide a reasonable opportunity for an employee to take independent advice, even if the employee freely wants to sign the agreement immediately and without taking advice. In addition, starting work the day after signing an agreement suggested that there had not been a “real” opportunity to take independent advice/negotiate any terms.

The lessons to take away

If you want to protect your right to rely on a 90 day trial period when employing a new employee make sure:

• You give them a copy of their employment agreement containing the trial period at the time they are offered employment.

• They have a sufficient amount of time after that to take independent advice on the agreement/negotiate its terms with you, if they so choose. In other words, make sure the agreement is not given to them just before they are due to start work!

• They don’t just sign the agreement immediately, even if they want to. You may need to insist that they take the agreement away, unsigned, to be returned at a later date.

This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:

Mike Henderson-Rauter, Senior Solicitor – mikehenderson-rauter@parryfield.com
Hannah Carey, Senior Counsel – hannahcarey@parryfield.com

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