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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 ZEDB.

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Speaker 2: We are in studio with Gareth Abden or our employment

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Speaker 2: law expert. Phones are open Tyler's standing by. Gooday Gareth,

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Speaker 2: Good day guys. Texts are already pouring in our phone

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Speaker 2: calls too, so let's crack on.

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Speaker 3: All right, Hi, Gareth. My friend had an annual performance review.

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Speaker 3: One week after that he had a pay review and

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Speaker 3: pay was increased. Then one week after that they announced

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Speaker 3: a restructure. After feedback closed, they announced that that restructure

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Speaker 3: would proceed. They made no attempts to offer any alternative

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Speaker 3: roles in the company, and after the announced restructure would

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Speaker 3: go ahead, they were given their notice. We also noticed

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Speaker 3: that most staff let go were of non New Zealand origin.

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Speaker 3: Is there a potential for a PG.

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Speaker 4: Well, I'd hate to say this, but I'm going to

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Speaker 4: say there's always potential for a PG. Yeah. It does

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Speaker 4: sound a little bit suspicious, but you've got to remember

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Speaker 4: that a restructure supposed to be about roles, not about individuals.

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Speaker 4: So I could see the possibility of someone getting a

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Speaker 4: pay rise if that individual has performed really well and

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Speaker 4: worked really hard and done a good job, they could

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Speaker 4: get a pay rise. And then if the company looks

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Speaker 4: at the structure and says, well, actually we don't need

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Speaker 4: that person's role anymore, that could fit. But it does

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Speaker 4: seem a little bit odd.

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Speaker 3: The timing is a bit yeah diff time, isn't it.

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Speaker 1: Now.

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Speaker 4: Employers are legally obliged to look at redeployment, and so

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Speaker 4: if there are jobs that are open or vacant in

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Speaker 4: the business, they have to look at whether the person

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Speaker 4: could be redeployed to them. Of course, you know, sometimes

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Speaker 4: we see some an executive on one hundred k plus

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Speaker 4: and there's a vacancy for a laborer or a cleaner

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Speaker 4: on significantly lower wages. Well, most of the time they

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Speaker 4: wouldn't want that job, and finance they couldn't take that job.

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Speaker 4: So it really depends on the details.

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Speaker 2: A lot of personal grievances coming about. This is a

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Speaker 2: lengthy text, but it's a good one. Gareth. I'm currently

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Speaker 2: undergoing a process of being constructively dismissed, mainly by having

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Speaker 2: my hours of work reduced, although there has been some

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Speaker 2: nastiness from the manager toward me as well. My contract

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Speaker 2: has my hours as between twenty five and forty five

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Speaker 2: per week. However, before I signed the contract, I made

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Speaker 2: my employer aware via that I require a minimum of

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Speaker 2: thirty five hours a week to meet my financial commitments.

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Speaker 2: He replied in an email with a breakdown of what

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Speaker 2: my hours of work would be, which was enough time

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Speaker 2: for me. I have worked those hours since I started

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Speaker 2: in November until the constructive dismissal started. Does my employers

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Speaker 2: promise to me in writing carry any weight if I

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Speaker 2: was to take a PG.

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Speaker 4: Yes, it most probably does. There's a reasonable argument that

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Speaker 4: that email from the employer varied the contract and provided

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Speaker 4: a new minim. The other red flag is it's very

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Speaker 4: unusual to have hours of work that are such variance.

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Speaker 4: You know, twenty five to forty five. That's a huge difference.

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Speaker 2: That's full time halftime, isn't it.

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Speaker 4: Yeah, so that's quite unusual. The other red flag is

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Speaker 4: people often talk about constructive dismissal and they don't quite

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Speaker 4: get the concept correct. For there to be a constructive dismissal,

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Speaker 4: someone has to be dismissed. Now, they can be dismissed

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Speaker 4: by resigning because they feel like they have no option.

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Speaker 4: It sounds like this person's still working, so there's no

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Speaker 4: constructive dismissal. They would actually have to resign and then

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Speaker 4: claim constructive dismissal.

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Speaker 2: Right, good distinction. Okay.

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Speaker 3: Another text says, Hi, boys, I'm on a casual contract,

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Speaker 3: but I do the same shifts weeken and week out.

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Speaker 3: At what stage does that become a permanent position? Currently

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Speaker 3: I'm working regular hours of forty hours per week and

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Speaker 3: I have been for months.

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Speaker 4: This is a fantastic question, and casual employment is one

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Speaker 4: of those things that employers seem to get wrong more

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Speaker 4: often than they get right. A lot of employees start

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Speaker 4: as a casual employee and then over time, like this person,

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Speaker 4: it appears their employment gets a degree of regularity, and

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Speaker 4: as soon as it's got that regularity and there's an

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Speaker 4: expectation of ongoing work, then they're no longer casual and

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Speaker 4: they become a permanent employee. They could be a permanent

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Speaker 4: employee with no fixed hours of work, although in this

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Speaker 4: case you kind of wonder if the hours of work

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Speaker 4: are forty hours a week, if that's what the person's

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Speaker 4: been doing for months.

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Speaker 2: Okay, this is a fairly frank text from Scotty. He says, Gareth,

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Speaker 2: we have a guy who used to be an all

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Speaker 2: rounder in our place of work, now is refusing to

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Speaker 2: do certain tasks. If we restructure, can we get rid

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Speaker 2: of this bloke?

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Speaker 4: Potentially you could, but it sounds to me that this

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Speaker 4: is actually more performance or a disciplinary issue. If the

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Speaker 4: work that this person used to do is part of

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Speaker 4: their role, it's arguably part of their job description, and

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Speaker 4: now they're refusing to do it, that's a disciplinary issue.

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Speaker 4: And you know you can issue a warning and potentially

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Speaker 4: dismiss someone if they repeatedly refuse to follow your instructions.

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Speaker 4: It's also quite likely a performance issue, and so while

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Speaker 4: you might be able to restructure them out, I often

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Speaker 4: think it's better to actually deal with the issue that

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Speaker 4: you have rather than creating another one.

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Speaker 2: Excellent answer Jess, Hello, welcome.

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Speaker 5: Oh hi, it's a turn.

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Speaker 2: Yes, it's your turn. Jess, Gareth's listening.

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Speaker 5: Oh good, Thank you very much. Look sort of a

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Speaker 5: general enquiry. My daughter and always been working in an

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Speaker 5: industry for.

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Speaker 6: About four years.

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Speaker 5: During the last year the change from one company. While

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Speaker 5: the company was brought out by another company around the

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Speaker 5: beginning of this year, they rewrote their contracts and took

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Speaker 5: out redundancy clauses. And said, I do not worry your

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Speaker 5: job's safe. She's currently having to reapply for her role,

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Speaker 5: So I suppose the question is in good faith, they

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Speaker 5: thought that the removal of redundancy was not an issue.

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Speaker 5: Now I wonder, like, if she doesn't have a job, this.

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Speaker 6: Is an issue. I mean it will be.

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Speaker 5: But what she misslied, I suppose to my question.

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Speaker 2: Yeah, a couple of alarm bells there.

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Speaker 4: Yeah, there's a lot of alarm bells there. I'm quite

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Speaker 4: concerned about your job is safe. And I guess it

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Speaker 4: depends on exactly what the employer said at the time,

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Speaker 4: is that your job is safe now or your job

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Speaker 4: is going to be safe forever. And I think relying

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Speaker 4: on someone saying your job is going to be safe

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Speaker 4: and thinking that's going to be forever, that that seems

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Speaker 4: a bit unrealistic.

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Speaker 2: Can they just remove redundancy clauses.

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Speaker 4: Only if you agree to it? Now, they can only

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Speaker 4: change an employment agreement if the other party agrees. Now,

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Speaker 4: it could be that they gave some sort of benefit

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Speaker 4: an exchange for changing that, and we often see that

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Speaker 4: where someone will get a pay rise, but company car

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Speaker 4: gets removed, our redundancy benefit gets removed, So it really depends.

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Speaker 2: Did you know, Jess, whether your daughter got any benefits

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Speaker 2: for having that redundancy removed.

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Speaker 5: She didn't get this benefits. There was no pay rise.

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Speaker 5: I suppose employee wondered at the time such it was

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Speaker 5: a good faith model that they were following.

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Speaker 4: Yeah, yeah, I mean potentially got a claim. Certainly, it

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Speaker 4: looks like that could be a breach of good faith there,

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Speaker 4: so I guess you'd have to see how that restructure

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Speaker 4: played out.

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Speaker 5: Sure, Okay, look, thanks pretty much for that. It's sort

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Speaker 5: of what I thought you might say. I mean, if

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Speaker 5: she is offered a job tomorrow, then she'll.

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Speaker 4: Be fine, Yeah, take the job.

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Speaker 5: Not yet, absolutely, Jess.

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Speaker 2: Thank you for that question.

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Speaker 3: Very good. It was Hi, guys, there's a texture. I'm

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Speaker 3: on wages around one hundred and twenty thousand dollars a year,

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Speaker 3: and my employer now wants me to go on a

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Speaker 3: salary for around twenty five thousand dollars less. Can they

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Speaker 3: do that?

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Speaker 4: Well, it really depends on what you mean. Can they

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Speaker 4: do that? If you agree to it, yes, they can.

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Speaker 4: And if the business can't afford to have someone on

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Speaker 4: one hundred and twenty k of hourly wages, then they

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Speaker 4: could look to restructure and disestablish that role. So you know,

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Speaker 4: I'd be it's up to you. I'd be trying to

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Speaker 4: discuss it with the employer and try and come to

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Speaker 4: annagement that works for both sides. But yeah, potentially they

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Speaker 4: can do that as long as they follow a process.

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Speaker 2: Great thank you for these texts. Has some great questions

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Speaker 2: every fortnight brilliant. I love to would put this question

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Speaker 2: to you, Gareth, because I'm interested in your answer. Gareth,

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Speaker 2: we work in the farming sector for quite a large company.

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Speaker 2: We are on salary with fortnite pay minimum of eighty

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Speaker 2: five hours. It says in the contract more hours are

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Speaker 2: required where necessary due to the nature of the job.

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Speaker 2: But my partner is working ninety five hours plus every fortnight.

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Speaker 2: We fill out a time sheet fortnightly. Is there a

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Speaker 2: point where the company needs to pay overtime in money

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Speaker 2: or loo?

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Speaker 4: Yeah, and that all comes down to what are reasonable

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Speaker 4: extra hours. And if they're doing an extra ten hours

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Speaker 4: every fortnight or every week, I can't remember what it was.

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Speaker 4: I think you've got an argument there that that's not

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Speaker 4: reasonable extra hours from time to time. That's just a

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Speaker 4: bigger job. Yes, you could, you could certainly raise it,

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Speaker 4: as I always say, raise it constructively first and and

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Speaker 4: and see what the response is.

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Speaker 2: Excellent, Good luck, Joe.

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Speaker 3: Hello there, Yeah, but.

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Speaker 2: Garet's listening.

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Speaker 6: Oh Hi, I'm just wondering. I'm on Wastes at the moment,

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Speaker 6: and the company I work for is wanting me to

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Speaker 6: go on salary, but it's way below what I'm what

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Speaker 6: I'm earning nearly. Did they have any write that I

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Speaker 6: can I decline it and not not teake facility, but

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Speaker 6: that they're kind of pushing me towards it.

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Speaker 4: Yeah, great, Christian, Joe, And it's quite similar to one

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Speaker 4: that we just dealt with earlier in the show. You

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Speaker 4: don't have to take it, but there is the risk

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Speaker 4: that they if you don't take it, they might look

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Speaker 4: at a restructure and look at disestablishing your role. Also,

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Speaker 4: depending on what the guaranteed hours are in your contract,

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Speaker 4: they could pretend just offer you less work, will give

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Speaker 4: you less hours, and so you'll be in the same situation.

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Speaker 4: I guess the one advantage of going on a salary

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Speaker 4: is you know how much you're going to be getting,

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Speaker 4: but that's something you've got a way up. Nope, you

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Speaker 4: don't have to take it, but there might be consequences.

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Speaker 6: Oh, thank you very much, Thank you.

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Speaker 2: Thanks Joe.

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Speaker 3: Text to here says, Hi, Gareth, my husband works a

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Speaker 3: three hour weekend shift. He's on a salary, so he

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Speaker 3: doesn't get paid for it, but he does get three

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Speaker 3: hours off later in the week. Is this legal? And

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Speaker 3: also he's on the call list for the alarms because

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Speaker 3: we live nearby, but he's not on a call out rate.

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Speaker 4: Okay, Yeah, that's some quite similar to a question we

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Speaker 4: had a few weeks back, and it really depends on

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Speaker 4: what he's agreed to. If he's agreed to that and

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Speaker 4: that's part of his hours, then there's no issue with it.

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Speaker 4: In terms of the callouts. He does need to get

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Speaker 4: compensation for that, but it's not set what the compensation

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Speaker 4: needs to be, so it really depends on how often,

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Speaker 4: how long. But potentially that could be.

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Speaker 2: Fine, excellent and last one to finish, it's a curly one, Gareth,

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Speaker 2: can you please clarify if it is still a requirement

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Speaker 2: to be COVID nineteen vaccinated. Our employer is asking me

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Speaker 2: as a new employee, and I wondered how this works

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Speaker 2: now repast history.

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Speaker 4: Yeah, it really depends on what you mean by is

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Speaker 4: it a requirement as far as I'm aware, and I

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Speaker 4: could be wrong on this, but as far as I'm aware,

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Speaker 4: there's no government requirement anymore. There's no statutory requirement, but

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Speaker 4: an employer, if they've got a reasonable basis for it,

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Speaker 4: they could have a requirement. Depends on what the business is,

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Speaker 4: you know. I could see a situation where I don't know,

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Speaker 4: someone works in a laboratory something like that, and they

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Speaker 4: work with highly muno compromise people something like that. It's possible, calm,

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Speaker 4: So it really depends. If it's just a run of

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Speaker 4: the mill business with no special requirements, it might be

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Speaker 4: seen as unreasonable.

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Speaker 2: Gareth, it's always great talking with you in thirty seconds

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Speaker 2: or less. Our uber drivers and your view contractors or employees.

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Speaker 4: Well, you know, I'd have to go with the Court.

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Speaker 2: Of Appeal Chicken, Gareth, great, Thank you so much for

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Speaker 2: your time. Gareth Abdnor of course, just reminding he's director

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Speaker 2: and founder of Abdenor Law and his email address if

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Speaker 2: you want to get hold of Gareth for anything is

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Speaker 2: Abdenor Law dot Nz. That's abdenor ab d I n

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Speaker 2: R Law dot in z. That's the website for your

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Speaker 2: pardon abdenor law dot n Z and just reminder the

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

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

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Speaker 2: be a substitute for obtaining specific professional advice, and shouldn't

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Speaker 2: 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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