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Speaker 1: You're listening to the Simon Barnett and James Daniels Afternoons

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Speaker 1: podcast from News Talk z'b.

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Speaker 2: Gareth Abdenor is our employment, workplace and information expert joins

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Speaker 2: us every fortnight. He's in again, Get a Gareth. Oh,

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Speaker 2: now make sure I've got that on? Get a Gareth?

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Speaker 2: Say that again? There, Bud, which micy you on? Gareth?

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Speaker 2: Go that one? There are you're going to?

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Speaker 3: Yeah?

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Speaker 2: Try that one? Try that one? Try all right?

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Speaker 4: Right? Technical difficult?

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Speaker 2: Yeah. He may be an employment contract the expert, but

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Speaker 2: with microphones not so much.

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Speaker 4: No.

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Speaker 5: Really, nice to see you, really, nice to see you.

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Speaker 5: Now we've got a text here already, Gareth. I advised

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Speaker 5: my employer i'd be leaving in the last week of

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Speaker 5: September and I'd let them know an exact date soon.

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Speaker 5: I've just had a week off. I still have three

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Speaker 5: weeks in arrears plus this year. They have asked me

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Speaker 5: yesterday again that they want me to take more leave

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Speaker 5: because it's not busy, but the payroll man at work

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Speaker 5: said it's due to the larger that I will be

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Speaker 5: paid out. I agreed to take three more days leave

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Speaker 5: when they asked me yesterday, but I was going to

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Speaker 5: use fifty percent of this lump some payment to go

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Speaker 5: to another country and live. Do I have to take

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Speaker 5: that leave?

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Speaker 4: Yeah? This is such an age old problem and a

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Speaker 4: lot of these sort of situations come about because employers

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Speaker 4: often don't manage leave entitlements well, and then when someone

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Speaker 4: resigns there's a huge amount that needs to be paid

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Speaker 4: out to them. You don't have to take the leave

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Speaker 4: unless they give you fourteen days notice, But how much

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Speaker 4: do you want to push it?

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Speaker 1: Like?

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Speaker 4: This is one of those situations where I try and

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Speaker 4: come to compromise and leave on good terms. The sinnecon

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Speaker 4: Me says, you know, this is kind of the employer's

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Speaker 4: own fault for not managing the leave properly. This person's

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Speaker 4: tried to do the right thing and give as much

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Speaker 4: notice as possible, but yeah, it's not a great situation.

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Speaker 2: O eight hundred eighty ten and eighty is our phone number.

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Speaker 2: I eight hundred eighty ten eighty or you're welcome to

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Speaker 2: text your question through to nine two ninety two if

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Speaker 2: you want to get in touch with Gareth. Hi, Gareth,

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Speaker 2: I'm currently this is a great question on text. I'm

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Speaker 2: currently helping someone I know through an employment issue at

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Speaker 2: the moment, can you please provide some information about constructive dismissal. Essentially,

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Speaker 2: this person's raised concerned about bullying and an informal meeting

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Speaker 2: saw this turn into a performance review. The offer has

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Speaker 2: basically been forget the bullying accusation or resign without prejudice.

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Speaker 2: What would your advice be on this?

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Speaker 4: Yeah, gosh, there's so many red flags in this one.

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Speaker 4: You know, if you raise bullying concerns, you definitely don't

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Speaker 4: want that turning into a performance review. That's that's the

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Speaker 4: first red flag. And then you definitely don't want the

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Speaker 4: employer to say, well, you know, you can can resign

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Speaker 4: or put up with it. That's not good either. Constructive

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Speaker 4: dismissal is one of those really tricky things where it's

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Speaker 4: a claim that's often raised, but it's not often successful

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Speaker 4: because the employee has to prove that they had no

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Speaker 4: option but to resign. It looks like this situation might

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Speaker 4: well be one of those cases.

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Speaker 5: Might well be Yeah, really okay, all right. Another text says, Hi, Gareth,

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Speaker 5: my brother in law has eight weeks of leave built

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Speaker 5: up and it keeps building. The contract says he gets

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Speaker 5: a day off if he works Sundays and he works

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Speaker 5: a lot of Sundays, so his work has said he

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Speaker 5: won't get any leave approved because they're short stuffed, they're

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Speaker 5: in nursing. Are they allowed to do that if it's

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Speaker 5: in the contract that it's entitled leave. He has had

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Speaker 5: no leave approved since the beginning of the year.

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Speaker 4: Wow, yeah, that's a long time. Technically, if that leavers

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Speaker 4: leave that the person's entitled to, they should be able

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Speaker 4: to take it now. I think everybody knows about the

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Speaker 4: difficulties and the health sector with staffing. An employer always

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Speaker 4: has to act fairly and reasonably. Arguably not approving any

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Speaker 4: leave arguably that's not fair and not reasonable. So it

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Speaker 4: may be that this person has grounds for a claim.

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Speaker 4: But again, you know, you really want to try and

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Speaker 4: reach a compromise because raising a claim is generally the

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Speaker 4: beginning of the end of an employment relationship.

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Speaker 2: This is also a great text. Good on you. I

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Speaker 2: won't mention the person's name, they've just sent it. The

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Speaker 2: second says Hi, Gareth, I'm attending a funeral tomorrow and

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Speaker 2: I asked that it would be leave without pay. They

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Speaker 2: are insistent that I use annual leave day or a

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Speaker 2: sick day. Can they enforce this.

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Speaker 4: Well, that's bizarre. I can't see why it would be.

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Speaker 4: Sick leave leave without pay is something that an employer

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Speaker 4: has to agree to, has to Sorry, let me rephrase that.

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Speaker 4: That's something that you can only take if an employer

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Speaker 4: agrees to it. It's not something that you're entitled to.

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Speaker 4: And so if you don't qualify for bereavement leave, which

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Speaker 4: only applies if the relationship fits into a certain category

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Speaker 4: it's a close relationship, Yes, they could require you to

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Speaker 4: take an your leave. Okay.

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Speaker 5: Another texter says, Hi, guys, my daughter works for a

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Speaker 5: well known employer at an after school club. She's given shifts,

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Speaker 5: which she accepts, and then when she's at work because

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Speaker 5: the kids have gone home, they send her home early.

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Speaker 5: The contract says that she must be paid in full

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Speaker 5: if shifts are canceled or cut short during that shift.

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Speaker 5: She's raised this, but at time she keep getting changed

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Speaker 5: by her manager. What should she do? She's using this

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Speaker 5: money to pay for accommodation at UNI has Sam.

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Speaker 4: Yeah, I mean if the contract says that this person

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Speaker 4: has to get paid for the whole shaft, then that's

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Speaker 4: what they're entitled to. First step would be raise it

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Speaker 4: as constructively as possible and if you don't have any success,

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Speaker 4: well then I'd be inclined to either see a lawyer

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Speaker 4: or raise a grievance yourself. I mean, that's breach contract.

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Speaker 4: It's another red flag that the managers changing the time sheets.

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Speaker 4: That's that's not good.

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Speaker 2: Ten to eighty we're with Gareth abdenor and Employment, Workplace

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Speaker 2: and Information Expert.

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Speaker 5: All right, we've got a question here, says our head

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Speaker 5: office has transferred our workplace to the north Shore in Auckland.

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Speaker 5: We're currently in Newmarket. They offered us new positions at

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Speaker 5: our current site, but they would be a demotion with

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Speaker 5: a decrease in pay. At the current site. The new

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Speaker 5: officers are smaller and add over thirty minutes of travel

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Speaker 5: time and there's no parking on site anymore, so an

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Speaker 5: extra ten minute walk on top of all of that.

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Speaker 5: I just wanted to know if they were allowed to

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Speaker 5: do this and whether I have any rights to an

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Speaker 5: increase in wages to cover the increased commuting costs.

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Speaker 4: This is a fantastic question and we see quite a

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Speaker 4: lot of this with employers either downsizing or moving to

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Speaker 4: flash or premises, and it can be a real issue

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Speaker 4: especially in places like Auckland with the traffic. As always,

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Speaker 4: it really comes down to exactly what's in this person's

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Speaker 4: employment agreements. Some employment agreements say that their place of

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Speaker 4: employment is X, and if that changes then potentially they're

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Speaker 4: being made redundant. Other ones say that they are working

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Speaker 4: from X or other locations as may be reasonably required.

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Speaker 4: And then it comes back to well, is it reasonable

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Speaker 4: or isn't it reasonable? I think if they've got legitimate

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Speaker 4: reasons for moving location an extra half an hour travel,

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Speaker 4: while you may need to take that on the chin,

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Speaker 4: it's interesting that they're offering roles at the current site

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Speaker 4: that require reduction in pay. I'd be interested to know

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Speaker 4: why that is, Why are the roles changing, and so

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Speaker 4: we'd need more detail. But it really comes down to

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Speaker 4: what is in the employment agreement about the location of work.

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Speaker 2: Very good, Let's go to the phones. Tracy's been waiting

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Speaker 2: a hello, Tracy.

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Speaker 3: Hi, thanks for taking my call.

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Speaker 2: Pleasure. Gareth standing by.

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Speaker 3: So, my son's sixteen. He works part time in hospitality.

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Speaker 3: He has three shifts per week as per his contract,

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Speaker 3: and he has to get paid for a minimum of

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Speaker 3: a two hour shift each time. But recently they've been

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Speaker 3: putting him on call for those shifts rather than him

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Speaker 3: actually coming in. He doesn't yet paid an on call

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Speaker 3: of balance. He has to be available to come in

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Speaker 3: at the last minute a sub disease. And I'm wondering

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Speaker 3: whether that's typical for hospitality or whether that's not okay.

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Speaker 4: Great question, Tracy, And there are two parts to that.

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Speaker 4: Is it typical, Well, I haven't worked hospitality for twenty

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Speaker 4: five years or so, but it was definitely typical in

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Speaker 4: those days. Is it okay? It's definitely in the gray

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Speaker 4: area of the law. It arguably doesn't comply with the

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Speaker 4: availability provisions legislation. If he's required to be available, he

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Speaker 4: should be getting some compensation for that, So it sounds

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Speaker 4: to me that he's getting a rough deal. I guess

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Speaker 4: the difficulty is if he refuses, he may find that

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Speaker 4: his A role is redundant because it doesn't sound like

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Speaker 4: there's enough work. So it may be that he wants

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Speaker 4: to raise this with the employer and try and find

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Speaker 4: agreeable compromise. But you're right, it doesn't sound right, doesn't

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Speaker 4: sound fair, and arguably doesn't comply with the law.

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Speaker 3: I thought that I tried to do a Google search

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Speaker 3: to find out more and I thought that around COVID times.

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Speaker 3: New employment agreement rules were introduced for the hospitality sector

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Speaker 3: around this to make it easier for an employer going

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Speaker 3: through difficult economic times.

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Speaker 4: Okay, I'm not aware of that, Tracy, but I can

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Speaker 4: certainly look into that.

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Speaker 2: Yeah, thank you very much Tracy for calling. You have

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Speaker 2: a good afternoon.

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Speaker 4: Thank you.

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Speaker 5: By another textas says Hi Gareth, I'm currently in the

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Speaker 5: process of being constructively dismissed and my hours are being cut.

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Speaker 5: The managers started posting rosters which give me a start

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Speaker 5: time but no finish time, so she can send me

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Speaker 5: home early when it suits. Is it legal to post

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Speaker 5: a roster with no finishing time?

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Speaker 4: That's a good one too, Gosh, the tricky one's coming

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Speaker 4: out today. It really depends on the circumstances. Generally, No,

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Speaker 4: you need to know when your work starts and when

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Speaker 4: it finishes. I can see situations where it would only

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Speaker 4: have a start time and you get paid a minimum

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Speaker 4: like one of the previous callers. You know, you get

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Speaker 4: paid at least two hours, or you get paid at

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Speaker 4: least four hours. In a case like that, the roster

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Speaker 4: might not have your finished time. But generally the expectation

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Speaker 4: is you know when your work starts and when it finishes.

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Speaker 5: At least when it finishes with that minimum worktime.

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Speaker 4: Yeah, definitely, Gareth.

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Speaker 2: I started my job eighteen months ago and last Christmas

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Speaker 2: I was paid out all my leave and then told

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Speaker 2: that I had to wait another twelve months before I

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Speaker 2: was entitled to my annual leave. Is this correct?

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Speaker 4: Yeah, there's some fishooks in the Holidays Act that a

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Speaker 4: lot of people aren't aware of. In my experience, most

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Speaker 4: employers don't actually apply those provisions strictly because they actually

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Speaker 4: very unuser friendly. But yes, technically that is correct. A

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Speaker 4: lot of employers do, however, let employees take leave and advance,

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Speaker 4: but they don't have to.

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Speaker 2: Okay, all right.

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Speaker 5: Another Texter, Ben says, my sister's been laid off. The

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Speaker 5: owner changed the company name and transferred the ownership to

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Speaker 5: his wife. He's asking everyone to reapply for their jobs,

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Speaker 5: but at a lower pay rate. Is this legal?

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Speaker 4: Certainly sounds dodgy, you know. Sometimes people say, oh, someone's

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Speaker 4: transferred the ownership. Well, it really depends on how they've

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Speaker 4: done that, if they've actually got salem purchase and exchange

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Speaker 4: of consideration for the shares. Well, potentially they might be

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Speaker 4: able to do this, but it doesn't sound right, and

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Speaker 4: I'd be looking into it more closely. Right, it sounds

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Speaker 4: like someone's trying to pull a fast one.

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Speaker 2: There's some wonderful text coming and thank you for them.

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Speaker 2: This is out. We've only got time, and I hope

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Speaker 2: we have got time for this. Gareth. Hi, guys, Gareth.

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Speaker 2: My daughter is seventeen. They pay her a training wage.

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Speaker 2: She is on eighteen dollars per hour. This employees, this

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Speaker 2: place employs no one who is older than eighteen. All

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Speaker 2: fifteen staff earned the training wage. Is there a time

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Speaker 2: limit there can be on the training wage?

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Speaker 4: Yeah, I don't know off the top of my head.

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Speaker 4: It's not something that I deal with all that often. Generally,

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Speaker 4: it's only when I'm on the show that the training

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Speaker 4: wage questions come up. My recollection is that there is

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Speaker 4: a limit on it, a time limit, but I don't

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Speaker 4: know what it is from the top of my head.

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Speaker 4: I do find it very strange that all of the

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Speaker 4: employees are on the training rage.

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Speaker 2: Who's training them? M yeah, true, true? Then yeah, and

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Speaker 2: this teacher, I mean, we're out of time. It's a

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Speaker 2: good one because I know they've done this in the

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Speaker 2: US in terms of the TikTok accounts for some of

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Speaker 2: their politicians in the Senate, in the House, and I

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Speaker 2: think they're looking at it a New Zealand. But this

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Speaker 2: texture from Mike. He says, Hey, guys, Gareth, they won't

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Speaker 2: let me at my place of work log on to TikTok.

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Speaker 2: Is it a breach of my human rights?

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Speaker 4: No?

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Speaker 5: Is it a breach of employment.

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Speaker 4: I'm not aware that there's a human right to access TikTok.

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Speaker 4: I know I'm old.

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Speaker 2: My daughters would say you're wrong.

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Speaker 4: I think my daughter would say I'm wrong. So, but

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Speaker 4: I'm pretty sure that's not a human right.

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Speaker 2: Okay, Black Mike have to stay on those tech talk accounts. Hey, look,

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Speaker 2: we're out of time, Gareth, Thank you as always, mate,

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Speaker 2: My pleasure. Really nice about Gareth Abden all And just

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Speaker 2: to remind the content of the segment as general in nature,

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Speaker 2: not legal advice. Any information to GOT is not intended

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

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Speaker 2: should not be relied upon as such.

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Speaker 1: For more from Simon Barnett and James Daniels afternoons, listen

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Speaker 1: live to news talks at b or follow the podcast

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Speaker 1: on iHeartRadio,