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Speaker 1: You're listening to a podcast from News Talk sed be

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Speaker 1: follow this and our wide range of podcasts now on iHeartRadio.

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Speaker 2: Gareth Abdenaor is an employment workplace information expert and director

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Speaker 2: of Abdenaor Employment Law. He joins us once a month

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Speaker 2: on Ask the Expert to answer your questions. If you've

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Speaker 2: got a problem in your workplace, or you're the boss

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Speaker 2: and you've got some issues with your employees, here is

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Speaker 2: the man to chat to. Gareth. Hello to you, been

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Speaker 2: a long time.

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Speaker 3: Good day guys, It's great to be back.

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Speaker 4: Oh one hundred and eighty ten eighty. If you've got

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Speaker 4: a question for Gareth, let's start with a text here.

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Speaker 4: I've been told I cannot smoke outside my workplace. It's

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Speaker 4: my lunch break. How can they tell me where and

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Speaker 4: where not to smoke? I get not smoking in the

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Speaker 4: bathroom and office, but outside? How much control do they

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Speaker 4: have on me?

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Speaker 3: Wow, that's a tricky one. And it's been a long

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Speaker 3: time since I've been asked a question about smoking. I

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Speaker 3: thought everybody faked these days.

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Speaker 5: Yeah.

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Speaker 3: The the anti smoking legislation sets out the requirements and powers. However,

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Speaker 3: there is also the ability for employers to give a

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Speaker 3: reasonable instruction. Now, one thing that occurs to me is

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Speaker 3: it's really not a great lock for the company or

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Speaker 3: the business to have the staff standing on the footpath

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Speaker 3: directly outside smoking, especially if they're blowing that secondhand smoke

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Speaker 3: into customers' faces. So it will really come down to

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Speaker 3: what the business is and exactly where this person is standing.

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Speaker 3: But maybe they should try and kick the eggs.

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Speaker 2: Yeah, good advice.

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Speaker 4: So does your workplace own you on your because you're

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Speaker 4: not often for lunch breaks? You get half now, but

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Speaker 4: that's a period of time where you're not getting paid.

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Speaker 4: So do they own your behavior during that half hour?

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Speaker 3: If you know what I'm saying, Yeah, yeah, totally. And

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Speaker 3: I guess it depends if you can be identified as

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Speaker 3: a staff member. If you if you go across the

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Speaker 3: road to the food court and you're still wearing your

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Speaker 3: uniform and you kick up a ruckers throwing a you're

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Speaker 3: going to be you're going to be in trouble. Yeah.

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Speaker 3: But if you're if you're dressed dressed and mufty and

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Speaker 3: no one knows where you work, and it's far more

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Speaker 3: difficult for an employer to to be able to control you.

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Speaker 2: Do they have to provide a space for smokers or vapors.

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Speaker 2: Is that part of legislation or that's just out of

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Speaker 2: the goodness of their heart. If they're a good worker,

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Speaker 2: they'll provide you a space. You can do that in

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Speaker 2: your break.

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Speaker 3: That is such a good question, Tyler. You know, it's

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Speaker 3: been so long since someone's asked me about smoking. I

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Speaker 3: do vaguely recall that a lot of businesses when this

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Speaker 3: first came in, had designated smoking spaces, but gosh, I

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Speaker 3: didn't even know that was really a thing anymore.

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Speaker 2: You have to be money bags to smoke these days, and.

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Speaker 3: Might take out a mortgage to the pack.

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Speaker 4: And my previous job, we see it up a bit

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Speaker 4: of some smoking bait. We put up a fake sign

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Speaker 4: in front of on a window saying smoking area, just

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Speaker 4: to see if there were any smokers take the bait. Yeah,

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Speaker 4: it was like the moths to a flame. There suddenly

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Speaker 4: three or four smokers within a half an hour. Hey, Gareth, Hi, Gareth.

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Speaker 4: I have an employee who has requested a meeting regarding

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Speaker 4: two letters of concern which have been issued to them

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Speaker 4: in the last month. They've requested to bring to support

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Speaker 4: people with them. Is this normal to have two or

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Speaker 4: can I request they just bring one. I will only

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Speaker 4: have one support person with me myself.

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Speaker 3: I've never been asked that question before. I don't know

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Speaker 3: why you would want to bring two support people when

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Speaker 3: if I was the employer in that case, I'd be

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Speaker 3: I'd be asking why and who these people are. There's

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Speaker 3: a lot of confusion out there between the difference. You know,

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Speaker 3: a support person is not a representative, and sometimes people

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Speaker 3: get confused on them. And so, yes, of course you

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Speaker 3: can bring a support person to a formal meeting, But

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Speaker 3: this sounds like they just want to have a chat. Well,

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Speaker 3: why do they need a support person? And who are

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Speaker 3: these support people? You know, I can see situations where

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Speaker 3: if you bring your work colleagues along that could really

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Speaker 3: create some issues. So yeah, when in doubt.

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Speaker 4: Ask yes, so requested a meeting regarding two letters of

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Speaker 4: concern which had been issued to them. Yeah, so it's

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Speaker 4: a they are summoning the meeting, They're organizing the meeting

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Speaker 4: and then bringing to support people.

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Speaker 2: Really weird, isn't it spread as part of the meeting

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Speaker 2: and they just bring in some mates along the feet.

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Speaker 4: It sounds it sounds a little bit like intimidation. Welcome

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Speaker 4: to the show. Sandra, you've got a question for Gareth.

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Speaker 6: Yes, I do five. It's kind of two Christians. I

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Speaker 6: was on sickly maybe three weeks ago, and I messaged

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Speaker 6: into my boss that was fine, But later in the

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Speaker 6: day she sends me a long text message asking me

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Speaker 6: if I can work extra hours going forward permanently. And

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Speaker 6: it's felt a bit like harassment because there were probably

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Speaker 6: three ticks that day about several different things. And now

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Speaker 6: I'm on acc leave and whilst I've only been on

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Speaker 6: it for a week that she has messaged me through

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Speaker 6: outlook my performance review and that that's upcoming and to

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Speaker 6: look at the documents regarding that, And I'm like, can

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Speaker 6: I just be left alone to be on leave or

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Speaker 6: do I have to respond to all of these requests?

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Speaker 6: What is spare?

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Speaker 3: Yeah? And you know, when you're unwell, you want to

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Speaker 3: be focusing on your recovery, not work stuff. While it's

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Speaker 3: not prohibited for an employer to contact an employee while

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Speaker 3: they're on sick leave, they need to act reasonably and

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Speaker 3: it certainly doesn't sound like these things are urgent and

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Speaker 3: couldn't wait. There's nothing wrong with you asking your employer

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Speaker 3: to wait until you are fitting back. To work, but

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Speaker 3: as always, I highly recommend that you do that in

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Speaker 3: a polite and professional way. If they don't listen to that,

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Speaker 3: then they may be giving you grounds for a grievance.

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Speaker 6: Yes, that's fair enough. I just haven't responded to the

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Speaker 6: emails about for much reviewers that it's like, well, I'm

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Speaker 6: not even a footage. But when you're on sick leave

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Speaker 6: and you're still getting pets, which happens quite regularly I

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Speaker 6: am on sick labor, I'll still get texts from the manager,

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Speaker 6: and I just think it's a little bit of a

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Speaker 6: boundary violation.

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Speaker 7: Really.

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Speaker 6: It seems about strange.

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Speaker 3: Yeah, And unfortunately, in this day and age, you know,

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Speaker 3: people are kind of expected to be available all of

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Speaker 3: the time, and that's not strictly legal. It would be

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Speaker 3: very difficult for your employer to take action against you

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Speaker 3: if you just ignored those messages unless it was something

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Speaker 3: urgent and really warranted and immediate response. I would certainly

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Speaker 3: advise an employer that it's not likely to be appropriate

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Speaker 3: to start renegotiating hours and things like that while someone's

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Speaker 3: on sick leave unless there's a really urgent reason. But

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Speaker 3: you know, people often forget good faith there's a mutual obligation,

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Speaker 3: and you know, if you're not happy about this, raise

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Speaker 3: it in a constructive way and see how they respond.

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Speaker 8: Okay, thank you.

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Speaker 2: Or the best Sandra. Hopefully that works out for you.

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Speaker 2: I mean, that is an interesting scenario. Text here, Gareth.

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Speaker 2: It says, Hi, I have an employee who's been on

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Speaker 2: ACC for over eight months. Now, can we simply let

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Speaker 2: them go with no repercussions?

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Speaker 3: Anonymous No, I'm pretty straightforward answer there. Certainly, after someone's

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Speaker 3: been away from work or AC you see, for eight months,

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Speaker 3: I would definitely be engaging with them, starting a formal

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Speaker 3: consultation process. But you can't just let them go. That

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Speaker 3: would be very high risk and almost inevitably lead to acclaim.

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Speaker 3: But it would be very reasonable to start consulting with

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Speaker 3: them over when they're likely there's going to be any

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Speaker 3: restrictions on them when they come back. Often employers leave

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Speaker 3: it far too long. One fish hook to keep in

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Speaker 3: mind for employers is that while someone's away on ACC,

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Speaker 3: they continue to accrue holiday pay entitlements. So the longer

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Speaker 3: you leave it, if they do end up going, you're

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Speaker 3: you're going to have to pay them more. So get

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Speaker 3: onto it. Consult with them and get the information you

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Speaker 3: need to make a decision.

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Speaker 2: Very good. Eight hundred eighty ten eighty is the number

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Speaker 2: to call if you've got a question. For Garethe's brilliant.

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Speaker 2: He is the man you need to chat to and

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Speaker 2: you can do so, but you've got to be fast.

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Speaker 2: So eight hundred eighty ten eighty is the number two.

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Speaker 4: There's some confusion about the ACC question. Before I thought

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Speaker 4: if you had someone this texasays. I thought, if you

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Speaker 4: had someone on ACC and that position was vital to

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Speaker 4: your business, then you could make them redundant after consulting them.

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Speaker 3: Yeah, and the key part there matter is you have

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Speaker 3: to consult with them. You can't just you can't just

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Speaker 3: make someone redundant. And even if they're not a vital

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Speaker 3: part of your business, if you consult with them, and

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Speaker 3: it's not reasonable to keep that position open, especially in

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Speaker 3: situations where it's not clear if they are actually going

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Speaker 3: to be fit to return to work, then you might

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Speaker 3: be able to terminate due to medical incapacity or medical retirement.

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Speaker 3: So the texture is correct, but you have to go

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Speaker 3: through that consultation process.

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Speaker 4: Hi, Gareth, there's a perception amongst my team that every

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Speaker 4: twelve months almost to today, they're entitled to a pay review.

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Speaker 4: Is this just a perception or is this an actual

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Speaker 4: legal obligation? Thanks very much, Mike.

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Speaker 3: It really depends on what's in the employment agreement. Traditionally

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Speaker 3: there was a clause that said every twelve months where

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Speaker 3: will give you a performance review and a pay review.

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Speaker 3: That's becoming a lot less common and certainly it's not

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Speaker 3: something I would recommend because you don't want to be

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Speaker 3: held to that cycle. It is good to have regular reviews,

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Speaker 3: but no, there's no requirement to give someone an annual

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Speaker 3: pay review unless it's in the employment agreement.

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Speaker 2: Very good, Mark.

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Speaker 4: You have a contract question for Gareth.

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Speaker 8: Yeah, I just found out that if I resigned that

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Speaker 8: I have to I cannot work for a similar type

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Speaker 8: of company for six months. They are really out of

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Speaker 8: it for a.

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Speaker 3: Yeah, it really depends on what your job is and

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Speaker 3: the industry. That's a restraint of trade provision. Now for

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Speaker 3: that to be enforceable, it needs to be reasonable, and

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Speaker 3: that comes down to the particular circumstances of your case.

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Speaker 3: If you work in an industry where you have a

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Speaker 3: lot of contact with suppliers and customers and you competing

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Speaker 3: within that six month period would be considered unfair competition.

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Speaker 3: Then you may be stuck with that certainly something that

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Speaker 3: would be worth taking advice on, though, because you don't

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Speaker 3: want to be twiddling your thumbs for six months, that's

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Speaker 3: for sure.

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Speaker 8: I can sol like different because there's only certain few

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Speaker 8: companies that do what I do, so I just want

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Speaker 8: to there around it.

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Speaker 3: Well, you know, depending on the advice you get and

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Speaker 3: your particular circumstances, it might not even be enforceable. Alternatively,

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Speaker 3: you might be able to negotiate something with your employer.

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Speaker 3: I've dealt with situations where people have agreed that they

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Speaker 3: won't go after certain clients or they won't unfairly compete.

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Speaker 3: In situations like that, you may be able to come

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Speaker 3: up with another arrangement. But the first step is you

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Speaker 3: should get advice and find out if that restraint is

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Speaker 3: actually enforceable or not, because if it's not, then you

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Speaker 3: might be worrying about something that's not even a problem.

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Speaker 8: So how do I find out throughout?

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Speaker 3: Yep? If you you could just contact the Law Society

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Speaker 3: and find someone who is an employment specialist and they'll

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Speaker 3: be able to help you.

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Speaker 2: Good luck with that mark six months here, Gareth, for

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Speaker 2: a restraint of trade seems quite high at the upper limit.

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Speaker 2: Can it be more than six months? Or is that

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Speaker 2: enshrined in legislation?

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Speaker 3: Generally the rule of thumb that we work on as

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Speaker 3: three months is likely considered a reasonable period, but in

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Speaker 3: some cases six months has been found to be reasonable,

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Speaker 3: and even twelve months. Right, But you're right, six months

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Speaker 3: is getting up there, and there needs to be particular

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Speaker 3: reasons why it's such a long period.

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Speaker 2: Yeah, very good.

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Speaker 4: Gareth Ibnow is an employment, workplace and information expert and

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Speaker 4: director of Abnormore Employment Law. I wait one hundred eighty

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Speaker 4: ten eighty if you've got a question for him, Richie,

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Speaker 4: you've got a question about benefits for union members.

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Speaker 5: Yeah, well, I'm not an union member, but I wanted

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Speaker 5: to know if you're working in a workplace with an

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Speaker 5: union in it and they say it's up to you

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Speaker 5: whether you want to join or not, and they when

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Speaker 5: you don't join, and they make rules or stuff for

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Speaker 5: you not to get such of money if it'd a

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Speaker 5: former bully.

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Speaker 3: Yeah, it's it's quite unlikely that that would be considered bullying.

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Speaker 3: There are special rules that prevent benefits that the union

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Speaker 3: has negotiated from being passed on to non union members

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Speaker 3: because otherwise why would anyone join the union. And that

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Speaker 3: situation may be perfectly acceptable. You know, of course, you

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Speaker 3: have the ability to try and negotiate better terms with

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Speaker 3: your employer if you're not a union member.

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Speaker 2: Hopefully that helps, Richie.

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Speaker 5: Yeah, but we're stuff like equal pay for people. How

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Speaker 5: can it be equal pay if you're not in an union.

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Speaker 3: Yeah, that's a that's a complicated question and not something

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Speaker 3: that I can answer over the radio.

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Speaker 2: Yeah, Richie, all the best, mates. Oh, one hundred and

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Speaker 2: eighty ten eighty is the number to call if you've

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Speaker 2: got a question for Gareth. He is an employment, work

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Speaker 2: place and information expert and is taking your calls.

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Speaker 7: Kevin met and Tyler he Ga, mate.

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Speaker 2: We've got Gareth here standing by as well.

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Speaker 7: Yep, I'm on the I'm I'm on the I'm on

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Speaker 7: the one minute pressure point. So, yep, how are you goin.

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Speaker 3: Garrett, I'm good, I'm good. How can I help?

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Speaker 5: Hey?

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Speaker 7: So, I've got a scenario. So I've been farming on

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Speaker 7: this farm here for three years now, and the farm

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Speaker 7: had sold in November last year. Through the time of here,

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Speaker 7: I've occurred a lot of annual leave, and as of Christmas,

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Speaker 7: I was owried about fifty one days of legoing. Now,

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Speaker 7: so I'm getting to a point where I'm on my

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Speaker 7: last day tomorrow because I'm seeing the rest of May

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Speaker 7: out with annual, but I'm still coming out with about

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Speaker 7: twenty five days of annual now because I'm on over

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Speaker 7: seventy K bracket of tax, is there going to be

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Speaker 7: a secondary tax or just normal tax on that annual

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Speaker 7: leave to be paid out?

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Speaker 6: Yeah.

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Speaker 3: My understanding is that when you owe that amount and

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Speaker 3: you're on that tax bracket, you're likely going to take

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Speaker 3: a big hit in tax payment on that payment, but

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Speaker 3: when it comes time to do your annual return, you're

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Speaker 3: likely to get some of that back. I want to

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Speaker 3: make it very clear though that I'm I'm not an

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Speaker 3: accountant and I'm not a tax expert, but usually when

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Speaker 3: you get those big final pay payouts, you do end

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Speaker 3: up paying more tax than you otherwise would, but you

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Speaker 3: can get it back later.

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Speaker 5: Yeah.

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Speaker 2: Brilliant Kevin, all the best and Gareth, thank you very much.

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Speaker 2: As always, another brilliant session and some fascinating questions. So

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Speaker 2: we will get you back in about a month's time.

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Speaker 3: Fantastic, Thanks guys.

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Speaker 2: That is Gareth Abdenor. He is an employment, workplace and

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Speaker 2: Information expert, Director of Abdenor Employment Law. You can check

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Speaker 2: out his website Abdenorlaw dot Nz. And just a reminder,

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Speaker 2: the content of the segment is general in nature and

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Speaker 2: is not legal advice. Any information discussed here is not

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Speaker 2: intended to be a substitute for obtaining specific professional advice

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Speaker 2: and shouldn't be relied upon as such.

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Speaker 1: For more from News Talks B listen live on air

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