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Speaker 1: You're listening to a podcast from news Talk zed B.

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

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Speaker 2: So he joins us once a month as part of

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Speaker 2: our Ask the Expert series to answer all your burning questions.

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Speaker 2: Gareth Abdenoy. He's an employment, workplace and information expert and

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Speaker 2: director of Abdena Employment Law. He's brilliant and he joins

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Speaker 2: us once again.

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Speaker 3: It's not Egbert the Expert, the very Eggy blow. No,

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Speaker 3: we've moved on from those icons of New Zealand advertising.

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Speaker 2: Yeah almost, Gareth, how you I'm good, thank you. Well,

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Speaker 2: just while we're on there, before we move on to employment.

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Speaker 2: The greatest New Zealand icon in your eyes, Gareth.

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Speaker 4: It's got to be the peanut butter.

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Speaker 3: Good Ah, the put But.

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Speaker 2: What a great jangle that was.

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Speaker 3: We take the fritchest peanuts in the world and.

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Speaker 2: Put them in.

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Speaker 3: Yeah. So we'll start off with some Textwaite hundred at

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Speaker 3: eighty ten eighty. If you've got a question around employment,

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Speaker 3: Lord give us a ring right now. Hey, guys, a

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Speaker 3: question for Gareth. I have a staff member who has

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Speaker 3: taken sick leave to head to a foreign country for

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Speaker 3: IVF treatment. Will be gone for three months, and I'm

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Speaker 3: just wondering what our legal standpoint is having to hold

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Speaker 3: her job open on a medical certificate from another country.

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Speaker 3: That's from simon.

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Speaker 4: Goodness, man, that's that's definitely a strange one. Well, the

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Speaker 4: Holidays Act provides for a certain amount of sick leave,

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Speaker 4: and that's not three months. The maximum amount that you

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Speaker 4: can have at any one time is twenty days.

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Speaker 5: So I.

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Speaker 4: Think this person is going to be exceeding their sick leave,

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Speaker 4: and unless they've obtained an agreement from their employer, they're

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Speaker 4: going to be on shaky ground as to whether there

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Speaker 4: will be a job for them to come back to.

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Speaker 3: Is IVF technically being sick. So if you get a

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Speaker 3: because you know, I'm good on you for doing it,

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Speaker 3: but that's something you've opted to do. It's not something

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Speaker 3: that's befallen you, if you know what I'm saying.

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Speaker 4: Well, I certainly think it's a gray area. I'm not

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Speaker 4: sure that's what the sick lev entitlement was designed for,

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Speaker 4: although I'm sure you could make an argument to that effect.

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Speaker 4: I think in this case it's more the length of

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Speaker 4: time that the person's going to be away that's clearly

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Speaker 4: an issue, and could certainly have a negative impact on

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Speaker 4: the business.

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Speaker 2: Very interesting artist exercier is Hi and Gareth, is it

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Speaker 2: okay for your employer to make comments around personal appearance

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Speaker 2: to an employee, such as you look drunk, or you

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Speaker 2: smell or you look fant Are you drunk?

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Speaker 4: Well, yeah, I guess the question is does this person

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Speaker 4: look drunk and have they been drinking at work? It's

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Speaker 4: a bit of a fine line, certainly, if one of

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Speaker 4: your workers appears to be intoxicated, I definitely think you

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Speaker 4: can raise that with them, and in fact, under health

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Speaker 4: and safety obligations, you're obliged to raise that with them.

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Speaker 4: Saying you look batted, well, that's maybe getting into awkward territory,

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Speaker 4: and it really depends on the circumstances.

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Speaker 2: What was the other one, tyler Well said you smell

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Speaker 2: and quotation it's not today anyway. I mean around that

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Speaker 2: personal appearance and if someone does have a bad body

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Speaker 2: odor is that I mean that must be a tricky

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Speaker 2: path to navigate if you're an employ employer.

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Speaker 4: It is. It's an incredibly difficult one, and in fact

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Speaker 4: it's one that's actually come up reasonably often because employers

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Speaker 4: want to deal with this in the most sensitive way possible,

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Speaker 4: certainly all of the ones that I've spoken to, But

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Speaker 4: how do you raise it with someone? It's incredibly awkward.

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Speaker 4: But what do you do if someone's personal hygiene, body

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Speaker 4: odor is having an impact on their colleagues, on customers.

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Speaker 4: It's something that you are entitled to raise, but you

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Speaker 4: need to do so sensitively.

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Speaker 3: It is an interesting one, isn't it from you know,

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Speaker 3: slightly off topic, But if you do stink, don't you

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Speaker 3: want someone to have a quiet word with you. I

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Speaker 3: worked with a guy for a while who really stunk,

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Speaker 3: and no one said anything. People just moved away from him,

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Speaker 3: and then he felt really isolated and he eventually left

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Speaker 3: the job. And I always wondered if because he was

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Speaker 3: actually a really nice guy, but he just really really stunk.

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Speaker 3: And if someone had just had a word to him,

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Speaker 3: a manager or something, and said, look, mate, you stink,

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Speaker 3: and people, I mean you'd say nicer than that, you

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Speaker 3: wouldn't go you stink? You might go, hey, your odor

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Speaker 3: is becoming a problem. Have you noticed that people are

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Speaker 3: moving away from you? But he just ended up thinking

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Speaker 3: everyone hated him and they left, So there you go.

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Speaker 4: Yeah, that's certainly not ideal, was it? I think I

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Speaker 4: think people are terrified of having these difficult conversations. Back

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Speaker 4: in the day, I think maybe we were a bit

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Speaker 4: more robust.

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Speaker 3: Yeah, yeah, I mean obviously someone walks in you don't

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Speaker 3: want to get oh you stink, you know, but be

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Speaker 3: subtle about it. But taking someone aside you might actually

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Speaker 3: be helping them. Yeah, absolutely, it's not the New Zealand

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Speaker 3: way unfortunately.

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Speaker 2: Oh eight hundred eighty ten eighty is the number to

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Speaker 2: call if you've got a question for Gareth. Now is

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Speaker 2: your opportunity. It's always a very popular segment, so get

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Speaker 2: in now. And if you want to stay anonymous on phone,

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Speaker 2: we can certainly do that. But oh eight hundred eighty

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Speaker 2: ten eighty is the number to call. Good afternoon, and

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Speaker 2: we are joined once again by Gareth Abdenor, an employment,

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Speaker 2: workplace and information expert and director of Abdenall Employment Law.

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Speaker 2: He's taking your questions on oh eight hundred eighty ten

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Speaker 2: eighty Phil Your question for Gareth.

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Speaker 6: Hi, Gareth, Yeah, I'm just calling about the sick leave,

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Speaker 6: kind of similar to the question before. And if the

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Speaker 6: employer is the maybe cause of becoming sick, how does

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Speaker 6: that factor him If the time is longer than the

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Speaker 6: allowed sick leave that the employee has.

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Speaker 3: What did he cough on you possibly?

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Speaker 4: Okay, okay, Yeah, that's a great question, Phil. It really

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Speaker 4: comes down to the circumstances of the particular case. If

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Speaker 4: it's a workplace injury that might be relevant in these

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Speaker 4: days or in the COVID days when people were picking

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Speaker 4: up COVID from people, that may be relevant. But it's

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Speaker 4: unlikely that you're going to need three months or for

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Speaker 4: getting COVID, So it really depends. I think you would

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Speaker 4: have to prove that the illness or sickness or reason

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Speaker 4: that you need to be away is as a result

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Speaker 4: of the workplace. Often people argue this, but then you know,

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Speaker 4: you raise a personal grievance. So I don't think that's

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Speaker 4: simply going to allow you to be away from an

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Speaker 4: extended period of.

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Speaker 6: Time, right, So, like if there's a doctor's notes or

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Speaker 6: an incident reports that show that's the case.

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Speaker 4: Yeah, a lot of people get doctors notes that simply

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Speaker 4: repeat what the patient has told them, so that it

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Speaker 4: doesn't necessarily mean that that is the cause. I see

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Speaker 4: that all the time. So yeah, I don't think that's

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Speaker 4: going to qualify you for extended time away.

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Speaker 6: I guess there's a personal agreement to the mix, so

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Speaker 6: we'll see how it plays out.

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Speaker 4: Yeah, yeah, and that's most likely the case in a

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Speaker 4: situation like that.

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Speaker 3: Well, thank if you call Phil, Welcome to the show. Taylor,

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Speaker 3: your question for Gareth?

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Speaker 5: Okay, Gareth, we it's about ours that that I work.

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Speaker 5: We work our wages Wednesday to Windsday. So on Friday

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Speaker 5: we were told not to come into work because one

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Speaker 5: of the key persons that of the team was sick,

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Speaker 5: so we didn't work that day. But then we were

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Speaker 5: asked to come in on Sunday, and so we came

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Speaker 5: into work in the presumption that there was going to

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Speaker 5: be over time. We then asked our shift supervisor if

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Speaker 5: we're going to get paid for the day that we

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Speaker 5: had off on Friday, because it's not our fault. He

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Speaker 5: said yes. Whether we're going to be paid on Sunday,

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Speaker 5: he said yes, But lo and behold, when the wages

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Speaker 5: our paships came around, they've used the Sunday to justify

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Speaker 5: paying the forty hours that were missing because we were

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Speaker 5: off on Friday and not paid us for the Sunday

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Speaker 5: that we worked as extra hours over on top of

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Speaker 5: the forty so that we do. So I'm really confused

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Speaker 5: why that was done and if there is room for

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Speaker 5: us to take this further to the tribunal or someone

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Speaker 5: to advise us on.

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Speaker 4: Yeah, that's a great question, and long time listeners of

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Speaker 4: this segment will know. The first step is have a

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Speaker 4: look at your employment agreement that will set out your

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Speaker 4: normal hours of work and it will also or should

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Speaker 4: set out when you can be asked or required to

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Speaker 4: work additional hours. In this case, it would be quite

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Speaker 4: surprising that if you are told not to come to

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Speaker 4: work and it's not your fault, that the company would

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Speaker 4: be permitted not to pay you for that day. And so, certainly,

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Speaker 4: from what you've told me, it sounds like you've got

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Speaker 4: a good argument to get paid for the Friday and

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Speaker 4: the Sunday, and you should be able to raise that

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Speaker 4: with the company without having to take get to the tribunal.

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Speaker 4: The costs of taking a case all the way to

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Speaker 4: a hearing and the authority for one day's pay may

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Speaker 4: not be cost effective, but you should be able to

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Speaker 4: negotiate this with the company.

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Speaker 2: Yeah, good luck, Taylor. Now I've got a text question

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Speaker 2: here for you, Garrison. Now, this person has harassed us

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Speaker 2: the last couple of times you've been on. So we're

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Speaker 2: going to ask it now. They keep texting the same question,

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Speaker 2: and the question is because I know you love these holiday.

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Speaker 4: Questions about the holidays as.

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Speaker 2: Yeah, so here it is. So why aren't most public

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Speaker 2: holidays just a day off for people who work on

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Speaker 2: a Monday.

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Speaker 4: That's something you're going to have to raise with Parliament. Unfortunately,

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Speaker 4: that's not really something I have any influence over.

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Speaker 2: Yeah there ego text and now leave us alone, please.

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Speaker 3: I know who that as is? Great New Zealand of

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Speaker 3: that texting.

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Speaker 2: Yea, he's pretty good, right. Eighty ten eighty is the

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Speaker 2: number to call inge. How are you this afternoon?

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Speaker 7: Oh sure, I'm very good.

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Speaker 2: Thank you now, gathrus Steen, you buy for your question.

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Speaker 7: All right. So, as health professionals are, for example, living

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Speaker 7: in a small area such as say christ Church, and

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Speaker 7: they are wanting to go from one clinic to another. However,

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Speaker 7: in the contract that they may have, it restrains their

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Speaker 7: ability to trade within a five k radius. So if

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Speaker 7: that was to be enforced by the employer, would they

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Speaker 7: need to pay them a certain period of time before

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Speaker 7: that restraint of trade is finished? Or is it unreasonable

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Speaker 7: to be putting things like that within contracts, you know,

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Speaker 7: when we have people who may bounce to clinics that

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Speaker 7: are quite close.

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Speaker 4: Well, just the first thing I have to say is,

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Speaker 4: I'm slightly offended that you think christ Church is a

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Speaker 4: small place. As a crowd christ Church resident, well, I

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Speaker 4: think it's the best city in New Zealand.

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Speaker 7: But I do agree.

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Speaker 4: The factor the factors that get taken into account, does

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Speaker 4: the restraint go any further than is needed to protect

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Speaker 4: the employer's interests? Now, to pick up on some of

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Speaker 4: your weirding, you see some people bounce from clinic to clinic.

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Speaker 4: In situations like that, there may be an interest that

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Speaker 4: is being infringed upon, and so the fact that it's

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Speaker 4: a smaller city like Christchurch isn't really the determining factor. So,

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Speaker 4: you know, could that be enforced Potentially, Yes, it could,

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Speaker 4: depending on the information that the employee has access to

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Speaker 4: and whether they can use that to unfairly compete with

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Speaker 4: their previous employer. People always grew up about restraints, and

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Speaker 4: some people think they're totally unenforceable and they get a

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Speaker 4: really unpleasant surprise when they get an injunction against them.

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Speaker 4: Other people think that restraints that are on the face

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Speaker 4: of it, really unreasonable are enforceable, and that doesn't stack

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Speaker 4: up either. So it really depends.

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Speaker 7: And what about in regards to contractors.

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Speaker 4: Yeah, with the contractor, it all depends on what the

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Speaker 4: parties have agreed to in the contract. And if you

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Speaker 4: agree to it in the contract and it's not it

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Speaker 4: doesn't breach any anti competitive laws or anything like that,

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Speaker 4: then you know, if you've agreed to it, you bound

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Speaker 4: to it.

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Speaker 3: There we go. Hopefully that helps.

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Speaker 2: Thank you, good luck, and thank you very much.

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Speaker 3: I've got one for you, Gareth on a text which

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Speaker 3: I find quite interesting. So I'm going to pick this

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Speaker 3: one out of the thousands coming through. Hey, Gareth, I

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Speaker 3: work for a Brethren company and have recently left. They

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Speaker 3: sent me a large severance payment. If I never talked

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Speaker 3: about them and sent me an agreement, is this on

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Speaker 3: the level? Have you heard of this before?

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Speaker 4: Well? If I had heard about it before and I

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Speaker 4: had taken the payment and signed the agreement, I wouldn't

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Speaker 4: be able to tell you. Seriously, Seriously, if if you

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Speaker 4: accept a payment to enter into what's often called a

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Speaker 4: non disclosure agreement or a confidentiality agreement, well then I

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Speaker 4: think that's likely to be enforceable. You've taken the payment,

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Speaker 4: you've agreed to something you know, you could choose not

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Speaker 4: to agree, and then you could you could talk about

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Speaker 4: what you want to talk about.

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Speaker 3: As does that include legal activities? Can you sign an

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Speaker 3: NDA that covers off crimes? Not No, not saying that

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Speaker 3: in this case at all. I don't know anything about that.

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Speaker 3: I don't know a lot about Brethren. I'm not saying that.

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Speaker 3: But just generally, if someone if someone's been committing some

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Speaker 3: crimes and then that you're leaving, and they're worried that

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Speaker 3: you might mention that, and you sign up a big

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Speaker 3: NDA that you won't talk about it, as does the

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Speaker 3: nd A, you know supersede your you know you're right

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Speaker 3: to go to the police.

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Speaker 4: That's a that's a great question, Matt, and I suspect

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Speaker 4: that that would be breaching all sorts of legal obligations.

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Speaker 4: But I don't think you're going to look very good

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Speaker 4: if you accept the payment saying that you're not going

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Speaker 4: to talk about it, and then you go to the police.

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Speaker 4: The best course of action in that case would be,

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Speaker 4: if you think crimes are being committed, go to the

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Speaker 4: police or the or the relevant authorities and.

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Speaker 3: Would you have to give the money back when you

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Speaker 3: did that? Well, and then it's a moral dilemma of

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Speaker 3: huge moral exactly.

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Speaker 2: H final one here and it was from a caller

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Speaker 2: we just didn't have time for. But Jim wanted to

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Speaker 2: ask about compassionate leave sick parents in Australia. Just the

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Speaker 2: rules around taking compassionate leave. How much time can you

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Speaker 2: get and what are the rules around employees giving that

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Speaker 2: compassionate leave to you?

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Speaker 4: Yeah, that's another great question. As far as I'm aware,

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Speaker 4: there is no provision for compassionate leave in the Holidays Act.

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Speaker 4: You can get sick leave if you are caring for

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Speaker 4: someone that you look after, so that could potentially be

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Speaker 4: in effect here. It's more likely that this is going

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Speaker 4: to be some sort of discretionary leave that the employer

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Speaker 4: might agree to. Definitely tricky situation and not one that

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Speaker 4: should be dealt with lightly.

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Speaker 2: Yeah, very good, Gareth. Thank you again so much. We've

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Speaker 2: had Choco bloc phones and so many texts, but we'll

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Speaker 2: hold them all next time you're with us in about

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Speaker 2: a month's sime.

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Speaker 4: Fantastic, Thanks guys.

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Speaker 2: That is Gareth abdenaor Employment, Workplace and information expert and

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Speaker 2: director of Abdenor Law Employment Law. You can check them

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Speaker 2: out at Abdenorlaw dot MZ fantastic.

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