Frequently Asked Questions about Employment Relations

The information on this website should not be used as a substitute for advice directly from a consultant or lawyer, who is familiar with your particular circumstances. Chapman Employment Relations Ltd takes no responsibility for the results of any actions taken on the basis of information on this website, nor any errors or omissions.

Simply click on the subject below and the questions and answers will open

 

Absences

An employee had applied for annual leave to go overseas, but I turned it down because I already have two staff off at that time. He has come back to me and said he is going anyway. I am really angry about his attitude and I really can’t be without another staff member at this time. What can I do?

If you have genuine business reasons for turning down an employee’s annual leave application, an employer has the right to do this. The employee does not have the right to go when the employer has reasonably refused the request.

It is important you notify the employee again that the leave has not been approved and the consequences of him going, i.e. you may dismiss him. Put this in writing to him.

If he still takes the leave you will need to follow a disciplinary process before potentially reaching the conclusion that you will dismiss him for being absent without authority.

My employee didn’t turn up to work for three days, he didn’t call in sick or anything, and then just waltzed in and said nothing. The gossip on the floor is that he went pig hunting. What can I do about it?

Any time someone is absent from work and you haven’t heard from them, you need to try to contact them to found out why they are not at work and when they will be back. If they don’t respond to your calls and then subsequently show up at work, the first step is to ask them why they were absent and hadn’t notified you. If their answer is not acceptable to you (or you don’t believe it), you have the option of initiating a disciplinary investigation, which may result in giving the employee a warning or dismissing him, depending on the circumstances. Before determining the outcome of the investigation you need to follow fair process, and the outcome must be ‘what a fair and reasonable employer could have done in the circumstances.’

Annual Holidays

I have an employee who just won’t take her annual leave. She has 7 weeks owing to her now, what can I do?

In the first instance an employer and employee must try to agree on when annual holidays will be taken. If you are unable to reach agreement, the employer can direct an employee to take their annual holidays, providing they are given 14 days notice.

There is now the option of ‘buying out’ the fourth week of annual holiday, but this does not apply to annual holidays that have been accrued or the entitlement arisen prior to 1 April 2011.

I would like to pay my employees for their fourth week of annual holidays, instead of them taking the leave. How do I go about it?

The ‘buying out’ of the fourth week of annual holidays can only be initiated by the employee. The employer can not ask an employee if this is what they would like, and the employer can not make it a term of an employment agreement that the employee will make a request.

Employment Agreements

Do I have to have a written Employment Agreement for my employees?

Yes. An employer is required to have a signed, written Employment Agreement for all employees. The employer is also required retain a copy of the signed Employment Agreement.If the employer and employee agree to change any of the terms in the Employment Agreement this must also be recorded in writing and signed by both parties.

I have an existing employee who refuses to sign the Employment Agreement. What can I do?

In the first instance try to establish why they do not want to sign it. If there are specific terms they are uncomfortable with find out why and see if you can resolve their concerns.

Sometimes an employee will say something along the lines of: ‘I haven’t had a contract all my working life, and I don’t need one now.’ In these situations start with explaining the legal obligation on you as the employer to have a signed employment agreement. It is not a reflection on the relationship you have with the employee, or a lack of trust, it is just a legal requirement.

Ultimately the most effective time to have an employee sign an employment agreement, is when you have something new or additional to offer, that you will not provide until the signed employment agreement is returned. The simplest example of this is a pay increase.

Where can we get an Employment Agreement from?

We can assist employers with the drafting of their Employment Agreements. We will have a discussion with you to ensure the Agreement specifically meets your needs, and our turnaround time is usually 48 hours. We provide plain language Agreements that are easy to understand.

Personal Grievances

Help! I have received a letter from an ex employee claiming they have a personal grievance against my business. What do I do?

I strongly recommend getting some assistance, even if it just a discussion about the particulars of your issue and guidance on what steps you need to take. We provide a no obligation, initial consultation of up to 30 minutes, for free. Please give us a call.

An employee that left us over six months ago has just notified us that they are raising a personal grievance. Can they do that?

A personal grievance must be raised within 90 days of the action that has led to the claim of a grievance or came to the notice of the employee, whichever is later.

If the claim is outside of the 90 days the employer can agree to accept the grievance out of time, (not recommended). If the employer does not agree, the employee can apply to the Employment Relations Authority to raise the grievance out of time. The Authority may grant this in exceptional circumstance.

Redundancy

Business is not great at the moment and I’m going to have to lay a couple of people off. Do I have to choose the people by ‘last on, first off’. The two I really need to go wouldn’t be chosen by this criteria.

‘Last on, first off’ is one method of selecting employees for redundancy, however, unless this method is specified in your Employment Agreements or Company Policy, you do not have to use it. You are able to determine what your selection criteria will be (there are some limitations), following consultation with your employees (and the union if applicable). You must determine the selection criteria, and apply the criteria in good faith.

Sick Leave

I have an employee who is frequently absent on Mondays. The other guys joke about him having ‘Mondayitis’, but it is beyond a joke. We can’t book jobs for him on Mondays as we can’t guarantee he will turn up. It is affecting productivity. What can we do?

In the first instance raise the issue with the employee. Let them know it is a problem for you. Tell him you have noticed a pattern with his absences and ask him why there is this pattern.  If the response is not acceptable to you, you can require the employee to provide a medical certificate for any further absences. If the absence is for less than 3 consecutive days the employer is required to pay the employee’s reasonable expenses to get medical certificate. Take notes of the conversations you have with the employee, and follow up with your requirements in writing to the employee.

Often this is enough to get the employee back on track. If not, you have the option of taking disciplinary steps to try to resolve the issue. If you get to this point please give us a call to discuss the process from here.

Trial Periods

I have an employee who has been with us for two months and they are not working out. Can I dismiss them under the 90 day trial period, without fear of a personal grievance?

A trial period is a written agreement between an employer and employee for a period of up to 90 days, during which the employer can dismiss the employee, and the employee can not raise a personal grievance for unjustified dismissal.

The 90 day trial period is available to all employers however there are some criteria that need to be met.

A trial period is only available for new employees. If a person has worked for the organisation previously, in any capacity, the trial period does not apply.

The trial period must be in the employment agreement, which needs to be signed by both the employer and employee before the employee starts. If this doesn’t happen the employer cannot rely on the trial period.

It needs to be noted that a dismissal during a trial period does not prevent the employee from taking a personal grievance for unjustified disadvantage or discrimination. It only prevents a personal grievance for unjustified dismissal.

Union Matters

A Union Organiser came to our workplace yesterday unannounced, went to the smoko room, and had a meeting with some of my employees. When I challenged him he said he had been invited by my staff, so had a right to be there. Is this true?

No. The law changed on 1 April 2011, and there is now a requirement for unions to obtain consent from the employer before entering a workplace. An employer can’t unreasonably withhold consent, and must respond to the unions request within two working days.  If you fail to respond to the union within the two days the union can consider the lack of response as consent. If you withhold consent you have to give you reasons in writing no later than the day following the decision.

I have received a letter from the union saying they are initiating bargaining for a Collective Employment Agreement . What does this mean, and what do I have to do?

An initiation of bargaining means the union is seeking a Collective Employment Agreement (CEA) for your workplace, and this is the first formal step towards achieving that. The first thing you are required to do is notify all your employees (union members and non members), who are covered by the proposed coverage clause, that bargaining has been initiated. You must do this as soon as practical and no later than 10 days after bargaining was initiated.

The employer and union then negotiate a ‘bargaining process agreement’. This is an agreement, setting out the rules both parties will follow when bargaining.

The employer and union usually exchange claims (tell each other what terms and conditions they want in the CEA) prior to meeting to negotiate. When claims are to be exchanged is one of the matters that should be addressed in the bargaining process agreement.

The parties then meet to try to reach agreement.

If bargaining has been initiated in your organisation it is important to seek professional advice so you can avoid costly mistakes.