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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 Talks EDB.

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Speaker 2: In studio with us Gareth abdn or our employment, Workplace

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Speaker 2: and Information expert. He joins us every fortnight. As you know,

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Speaker 2: he's back with us today, Gareth.

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Speaker 3: Gooday, guys, I mate, you're.

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Speaker 2: A popular man. Gareth. The text machine is pouring in

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Speaker 2: here and we haven't even started.

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Speaker 4: All right.

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Speaker 5: Pat has text and said, Hi, Gareth, can an employer

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Speaker 5: require an employee to have their own cover for sickness?

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Speaker 3: Yeah? So, I often see this, but it's not legal.

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Speaker 3: In a lot of small organizations, small employers without too

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Speaker 3: many staff, they do try and require employees to get

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Speaker 3: someone else to cover their shift when they're sick. M

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Speaker 3: But no, you can't require that. That's not reasonable.

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Speaker 2: Okay, this is a reasonably detailed question, Gareth. But it's

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Speaker 2: a good one. I reckon. Hi, Gareth, employer has decided

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Speaker 2: to have a structure, not restructure. They have presented a

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Speaker 2: proposal to our team of four account managers and said, quote,

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Speaker 2: this is just a proposal. There is nothing predetermined, and

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Speaker 2: this is not a cost cutting measure. Their proposal means

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Speaker 2: losing one account manager. They said they welcomed any questions

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Speaker 2: over two weeks, which was last Thursday. I sent in

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Speaker 2: questions twice, but they haven't answered me. They have submitted

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Speaker 2: from that, they have submitted on from that, and even

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Speaker 2: less respect. Can I raise concerns again about my questions

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Speaker 2: not being answered?

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Speaker 3: Well, yeah, you definitely can raise concerns again. And I

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Speaker 3: think in this situation, the employers running dangerously close to

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Speaker 3: breaching their good faith obligations. I smiled at that. They

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Speaker 3: do in a structure, not a restructure. I don't think

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Speaker 3: there's much of a difference between those, other than saving

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Speaker 3: a couple of letters. Yeah, but yes, if you provide feedback,

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Speaker 3: the employer has to engage with that feedback. They don't

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Speaker 3: have to accept it, but they do have to consider

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Speaker 3: it and come back to you on it.

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Speaker 5: Okay, okay, we get this occasionally, and but it's just

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Speaker 5: coming again. How robust are restraint of trade clauses within contracts?

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Speaker 5: I got a contract that says I can't work within

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Speaker 5: the same industry in a similar role for a period

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Speaker 5: of six months.

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Speaker 3: Yeah, you're right. This does come up all the time, JDA,

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Speaker 3: and I guess you can't generalize with them because it

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Speaker 3: all comes down to the particular situation and the particular clause.

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Speaker 3: It is very fact dependent and so it depends on

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Speaker 3: what is the industry, what does this person do? What

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Speaker 3: is the geographic area that the restraint covers. You know,

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Speaker 3: if you're a hairdresser in christ Church, an employer is

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Speaker 3: not going to be able to enforce a restraint against

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Speaker 3: you that prevents you from cutting here in Auckland, it's

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Speaker 3: just not going to fly.

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Speaker 2: What would be the most widely accepted restraint. Now, I'd

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Speaker 2: heard that six months was kind of a real push

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Speaker 2: for any business.

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Speaker 3: Really, yeah, I mean there are these these rules of

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Speaker 3: thumb that you know, three months is often seen as

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Speaker 3: been a reasonable period. The geographic area can't be any

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Speaker 3: more than reasonable. So, you know, if you've got a

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Speaker 3: very localized job like hairdressing, for example, it's going to

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Speaker 3: be very difficult to apply that outside of the town

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Speaker 3: that you're in. And you know, some jobs there just

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Speaker 3: is no legitimate interest that you're protecting. You don't have

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Speaker 3: any dealings with customers or suppliers or anything like that.

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Speaker 3: The problem is that, you know, most employers just have

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Speaker 3: a boiler plate or standard austraint they stick in every

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Speaker 3: agreement and then when push comes to shop they might

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Speaker 3: have difficulties.

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Speaker 2: Actually on that. This is quite specific, but it's to

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Speaker 2: your question James that you answered Gareth. Hi, Gareth, I'm

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Speaker 2: a contract driver for a logistics company. We own our

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Speaker 2: company trucks. What we own our own tracks effectively, and

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Speaker 2: we cannot drive for anyone else as we are signed

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Speaker 2: written for the said company. Are we contract drivers or employees?

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Speaker 2: Were earned by what we deliver and pick up for

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Speaker 2: the company. We bear all costs regarding our trucks and taxes.

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Speaker 3: Yeah, this is a tricky one and it's perplexed the

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Speaker 3: courts for many years. We had the Supreme Court get

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Speaker 3: involved back when the Lord of the Rings films were

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Speaker 3: being filmed in and they even wrote some special legislation

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Speaker 3: to cover the film industry.

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Speaker 2: That's right.

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Speaker 3: It really comes down to is this person actually in

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Speaker 3: business on their own account or not? And what we

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Speaker 3: often see as we see some factors that suggest they

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Speaker 3: employees and some factors that suggest they actually in business

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Speaker 3: on their own accounts. So are they are they invoicing

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Speaker 3: the company? Are they taking the tax benefits of being

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Speaker 3: self employed? Again, just like the restraint question. This is

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Speaker 3: one that it's impossible to generalize, and it really comes

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Speaker 3: down to looking at all of those factors. And you know,

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Speaker 3: sometimes people disagree, like we've seen it go through several

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Speaker 3: levels of the courts, and even the courts don't agree.

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Speaker 2: Right tricky on good a Trev.

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Speaker 4: Hey, how's it going?

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Speaker 2: Good?

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Speaker 1: Mate?

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Speaker 2: Thank you? Gareth standing by?

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Speaker 4: Oh? Thank you?

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Speaker 2: Fire away?

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Speaker 4: Hi are you there? Gareth?

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Speaker 3: I sure I am.

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Speaker 4: How are you good?

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Speaker 6: Good?

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Speaker 3: How can we help?

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Speaker 4: I've just got a question. I work in a little

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Speaker 4: well known resort town in the North Island and I'm

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Speaker 4: on a permanent part time contract with a minimum of

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Speaker 4: twenty eight but we've recently had a lot of things

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Speaker 4: like power cuts and all this sort of stuff, and

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Speaker 4: I've been told to go home early and haven't been

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Speaker 4: paid the twenty eight hours on my minimum contract. I'm

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Speaker 4: just wondering if they're enough to do that.

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Speaker 3: Now, that's a great question, and Trev this comes up

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Speaker 3: quite often as well. Technically, you should be entitled to

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Speaker 3: the minimum hours in your contract, and so taking this

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Speaker 3: strict approach, you should be paid at least twenty hours

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Speaker 3: a week, even if there isn't twenty eight hours of work.

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Speaker 3: That's it. Sometimes it does pay to take a reasonable

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Speaker 3: approach because if things are happening to your employer that

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Speaker 3: are outside of their control, like power pylons falling over

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Speaker 3: or things of that nature, if you take this strictly

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Speaker 3: legal approach, you may win the battle but lose the war.

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Speaker 3: Because understood a lot of businesses are struggling, especially with

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Speaker 3: the economy and inflation and stuff like that, and the

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Speaker 3: employees that make sure they get absolutely everything they are

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Speaker 3: entitled to and then sometimes find themselves out of her job.

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Speaker 3: So sometimes it is worth working with your employer. They

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Speaker 3: may not realize that they actually have to pay you

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Speaker 3: the minimum hours in your contract. So as always, you know,

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Speaker 3: it's worth having a chat with your employer, be as

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Speaker 3: constructive as possible and see if you can come to

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Speaker 3: some sort of arrangement that you can both live with.

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Speaker 4: Right, Okay, No, that's some good advice. Thank you very

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Speaker 4: much for that.

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Speaker 3: You're welcome all the best.

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Speaker 2: Thanks very much, Trevor for calling.

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Speaker 5: Got a text here from Amanda saying, Hi, Gareth, and

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Speaker 5: there are a few numbers in here. My daughter's at

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Speaker 5: a cafe. She's been there for nearly two years. She's

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Speaker 5: on a permanent contract with a minimum of fourteen hours.

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Speaker 5: The last thirteen months, she's worked thirty hours per week

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Speaker 5: and loves it. She had it run in with the

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Speaker 5: supervisor and now has had her hours reduced to seventeen

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Speaker 5: per week as of last week. The owner has said

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Speaker 5: it's to manage her errors. She's never had a performance

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Speaker 5: review nor been given a training plan. What the heck

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Speaker 5: can you help please this?

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Speaker 3: Yeah? So this often happens where someone starts off on

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Speaker 3: a relatively limited number of hours and then the hours

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Speaker 3: grow and they stay at an increased number for an

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Speaker 3: extended period of time. I think after a year of

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Speaker 3: working thirty hours, I think it was thirty Yep. This

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Speaker 3: person's got a very strong case that her hours are

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Speaker 3: actually now thirty hours a week and they can only

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Speaker 3: be reduced by agreement. So I think she's got some

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Speaker 3: leverage here.

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Speaker 2: So if she goes to them and says, I've had advice, yep,

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Speaker 2: I've worked thirty hours for a year. Technically there had

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Speaker 2: to be agreement to reduce me to seventeen, and they go, sorry,

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Speaker 2: it's seventeen. What happens? Then?

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Speaker 3: Then she's got a personal a grievance. I mean, at

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Speaker 3: a minimum, if they've reduced her hours because she's had

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Speaker 3: a run in and we don't know exactly what the

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Speaker 3: running is, but a run in with the supervisor, that

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Speaker 3: seems unreasonable as well, because that's punishment, and you can't

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Speaker 3: punish someone by reducing their hours.

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Speaker 2: So she should gently go to them and say, look,

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Speaker 2: as the first step, thirty hours is what we you know,

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Speaker 2: you need to agree otherwise otherwise? Can she then say otherwise?

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Speaker 2: I think I'm going to be forced to take a

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Speaker 2: personal grievance?

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Speaker 3: Yes, she could, you know, I find it interesting that

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Speaker 3: the employers now saying this is to manage the employee's

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Speaker 3: errors or have they been raised previously? If they haven't,

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Speaker 3: why not good? So there's a few red flags there.

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Speaker 5: What happens with personal grievance is do you know, do

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Speaker 5: people win them for one of a better term?

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Speaker 3: Yeah? I guess There's been a whole industry created with

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Speaker 3: advocates raise grievances for people. When most of them settle

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Speaker 3: and the advocate clips the ticket, set out of court, Yeah,

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Speaker 3: set out of court. It gets a bit more tricky

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Speaker 3: if the person actually wants to stay, and often people

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Speaker 3: want to stay. They want to fix the relationship. The

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Speaker 3: system supposedly designed for that, but practice it doesn't often work.

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Speaker 2: Okay, thanks Josh, thank you very much for waiting, Garret.

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Speaker 6: It's all is no way thanks So Yeah. Company I'm

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Speaker 6: working for, like a lot of businesses, are very slow

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Speaker 6: at the moment, and they had a meeting with us

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Speaker 6: all and told that two of us had to reduce

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Speaker 6: hours by three and a half hours a week. The

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Speaker 6: funny thing was they had me doing some papers and

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Speaker 6: unemployment stuff just the week before, and one of the

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Speaker 6: things I read was it had to be done by

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Speaker 6: that employer can't reduce her hours without consultation. I was

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Speaker 6: actually quite happy to help the company out by reducing

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Speaker 6: my hours to help the company. However, they never put

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Speaker 6: anything in writing to us, and I didn't know when

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Speaker 6: it was startying, how long it was going to be

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Speaker 6: for etc. And the other thing was I wanted to

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Speaker 6: negotiate the hours that I could have off. For example,

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Speaker 6: if I finished it one instead of finishing at four

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Speaker 6: thirty one day a week, I could finish at one

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Speaker 6: o'clock because I could make the money up by working

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Speaker 6: for a second job I have.

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Speaker 3: Yeah, I mean that all sounds very reasonable. And I'll

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Speaker 3: be inclined to go back to your employer and make

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Speaker 3: those points. Oh well, I think they're in a precarious

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Speaker 3: position then, because you're right, you can't just force someone

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Speaker 3: to reduce their hours. That it has to be either

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Speaker 3: as part of a restructure, so there's consultation, feedback and

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Speaker 3: then a decision, or it has to be by agreement. Now,

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Speaker 3: if they've just reduced your hours and there was no

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Speaker 3: agreement as to when that would be, which days, the

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Speaker 3: beginning of the day, the end of the day, any

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Speaker 3: of that sort of stuff, it sounds like they've acted

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Speaker 3: you noilaterally without agreement, and you've got good grounds for acclaim.

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Speaker 2: Yeah, Josh, very best of luck to you, Thanks for

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Speaker 2: raising question. Thank you, mate. You Hello Mitchell, Mitchell a

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Speaker 2: biggie pattern.

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Speaker 6: Yeah, how are you? Yeah?

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Speaker 4: Good, good, good good.

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Speaker 6: My wife works as a nurse for a DHV in

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Speaker 6: a casual fall and I'm just wondering, at what point

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Speaker 6: does casual become permanent.

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Speaker 3: Yeah, that's that's a very good question, Mitchel. And it's

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Speaker 3: kind of like asking how long is a piece of string.

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Speaker 3: There's no set definition, and casual employment is generally described

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Speaker 3: as being employment that is infrequent and irregular, and so

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Speaker 3: I generally take the approach that as soon as it

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Speaker 3: becomes frequent and or regular, then you're you're kind of

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Speaker 3: verging into a permanent part time perhaps with no fixed hours,

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Speaker 3: but not casual. And I think there's a lot of

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Speaker 3: people in New Zealand that ostensibly on a casual contract

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Speaker 3: that aren't casual employees. Yeah, so I hope that helps.

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Speaker 2: Thanks, Mitchell, appreciate it very much. Quick text before we

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Speaker 2: finish up. Gareth, Hi, mate, I'm on acc I have

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Speaker 2: been for five weeks. ACC want me off work for

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Speaker 2: another two to three months. The accident happened at my

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Speaker 2: place of work and was a result of faulty items.

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Speaker 2: Does my employer need to keep my role open? So

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Speaker 2: has been?

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Speaker 3: Yeah, it really depends on what sort of business it is,

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Speaker 3: what the role is, and then what the court would

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Speaker 3: consider to be a reasonable period. Now after an extended absence,

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Speaker 3: and that's going to be different for every sort of job.

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Speaker 3: After an extended absence, an employer can start consulting on

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Speaker 3: terminating for medical incapacity or medical as absence after how long, Well,

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Speaker 3: it really depends. So if you if you work for

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Speaker 3: a very large organization where someone could absorb the work

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Speaker 3: that you do in the meantime, that period's likely to

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Speaker 3: be longer. If you work in a business with two

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Speaker 3: employees and they actually can't cope without having someone in

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Speaker 3: that role, the period's likely to be a lot shorter.

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Speaker 3: So it's really difficult to know.

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Speaker 2: Maybe text it. Could you text us back and tell

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Speaker 2: us what you did. And we've only got thirty seconds

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Speaker 2: before Garth shoots the building because he's on the clock,

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Speaker 2: you know, and we have to pay him, just jokes.

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Speaker 2: He does it all for free because he's a good man.

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Speaker 5: He does it for cash.

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Speaker 2: Yeah, but if you could text us then and tell

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Speaker 2: us what you do, it might help. But we're pretty

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Speaker 2: much out of time, so I.

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Speaker 3: Mean, three months is quite a short period to terminate

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Speaker 3: for absence, is it you? You could potentially do it,

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Speaker 3: but it's at the shorter edge.

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Speaker 2: Okay, all right, Hey Gareth, thank you as always, mate,

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Speaker 2: Really good to get you in. Thanks my pleasure and

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Speaker 2: a reminder, folks, the content of this segment is general

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Speaker 2: in nature and is not legal advice. Any information discussed

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Speaker 2: is not intended to be a substitute for obtaining specific

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Speaker 2: professional advice, and 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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