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Speaker 1: You're listening to a podcast from News Talks'd be follow

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

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Speaker 2: As we always do on a Wednesday, Ask the Expert

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Speaker 2: series and today Beck and Studio. Gareth abdenaw is an employment,

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Speaker 2: workplace and information expert and director of abden or Law.

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Speaker 2: He is taking all your questions, no matter how curly,

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Speaker 2: on any issues you've got at your workplace. If you

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Speaker 2: are the boss, if you're the worker, he is the

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Speaker 2: man to chat to. Gareth, mate, good to see you today, guys.

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Speaker 2: And when I say see you, we I don't know

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Speaker 2: why it took us so long to get this rolling.

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Speaker 2: We've got our zoom operational. You're down in the christ

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Speaker 2: Church studio, my old studio, and it's good to actually

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Speaker 2: see you mate. You looking well?

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Speaker 3: Yeah, I want to know why you guys have got

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Speaker 3: better lighting. This is just really reinforcing the old adage

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Speaker 3: that I've got a face made for radio.

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Speaker 2: Ha ha awesome. I'm just looking behind you, Gareth. And

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Speaker 2: they've started taking away the tellies in the christ Church studio.

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Speaker 2: So I leave christ Church and all of a sudden,

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Speaker 2: no more tellies. But there you go. How's that lighting?

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Speaker 2: For it wasn't take what you want out of that studio, Gareth,

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Speaker 2: I don't need it anymore.

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Speaker 4: I didn't know that Andrew Produce had the power to

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Speaker 4: put on full high beam lights.

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Speaker 2: In a TV studio.

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Speaker 3: Well, that's right, that is it's just reflecting off my head.

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Speaker 4: I need some I need a welding mask.

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Speaker 5: Right now?

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Speaker 2: Is your opportunity, Oh, eight hundred and eighty ten eighty

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Speaker 2: is the number to call. And if you want to

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Speaker 2: text through, you more than welcome. Nine to nine to two, Gareth.

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Speaker 2: I've come in thick and fast, so we'll get straight

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Speaker 2: into it with this one. Hey, guys, my wife works

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Speaker 2: in retail, so it was not allowed to take holidays

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Speaker 2: during November or December, leaving her ten months of the

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Speaker 2: year to take holidays. Because one of her permanent days

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Speaker 2: is a Saturday and they are permanently short staff, she

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Speaker 2: is never allowed to take one or two weeks at

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Speaker 2: a time because there was no one to cover her

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Speaker 2: Saturday shift. I'm sure this is illegal. Can you please advise?

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Speaker 3: Yeah, I mean the issue of not being able to

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Speaker 3: take holidays over the Christmas period, that's not unusual in retail,

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Speaker 3: but the inability to take a week or two of

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Speaker 3: holiday at a time that is an issue, and you

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Speaker 3: do need to allow your staff to take a period

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Speaker 3: of leave rather than a day here or a day there.

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Speaker 3: So this is one of those situations where the caller's

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Speaker 3: wife might want to constructively raise this with the employer.

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Speaker 3: You know, it's a health and safety risk as well,

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Speaker 3: and the employer's got to think about do they want

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Speaker 3: to run the risk of a stress claim, because if

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Speaker 3: you're not actually getting getting time to take an extended break,

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Speaker 3: then you're going to be stressed out, You're going to

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Speaker 3: be tired, you must probably not going to be performing

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Speaker 3: at your best.

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Speaker 2: Yeah, good answer.

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Speaker 4: We'll go to James A. You've had a complaint later

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Speaker 4: against you at work?

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Speaker 6: Yeah, I did. It was a little while ago now,

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Speaker 6: but I had one of the people in my team

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Speaker 6: lay a bullying complaint against me, which I thought was

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Speaker 6: pretty unfair at the time given what had happened. Anyway,

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Speaker 6: we went through a process of about ten weeks of

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Speaker 6: there an investigation being shut up and all that sort

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Speaker 6: of stuff, and this person's complaint was circulated to some

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Speaker 6: senior management within the company a day or two before

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Speaker 6: the investigation was due to start. I was told of

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Speaker 6: the complaints being dropped, but also, this person is now

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Speaker 6: no longer going to report to you, but you're still

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Speaker 6: going to be working in the same team. So I said,

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Speaker 6: I wasn't happy with that at the time. I felt

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Speaker 6: that we should have been going ahead with the investigation.

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Speaker 6: And I'm just wondering whether there's any obligation on the

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Speaker 6: part of the company to investigate a claim like that

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Speaker 6: given the circumstances.

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Speaker 3: Yeah, that's a really tricky situation, both for you and

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Speaker 3: for your employer. The difficulty that employers often grapple with

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Speaker 3: is where someone's unhappy, they make a complaint, but they

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Speaker 3: either withdraw the complaint, as appears to have been the

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Speaker 3: case here, or they want the complaint to be kept confidential.

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Speaker 3: Now it's pretty tricky for an employer because arguably you've

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Speaker 3: still got to do an investigation if the concern's being raised. Now,

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Speaker 3: this seems incredibly unfair for you because you've gone through

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Speaker 3: all of the upset of having that complaint made against you,

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Speaker 3: all the preliminary steps, and so there is an argument that, yes,

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Speaker 3: the investigation should have gone ahead, But as a practical matter,

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Speaker 3: I think the fact that it was withdrawn is most

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Speaker 3: probably a good thing, and you never really know what

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Speaker 3: investigations are going to show. And you know, investigators tried

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Speaker 3: their best, but they aren't there. They don't actually know

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Speaker 3: what happened, and so even though you've done nothing wrong,

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Speaker 3: there's no guarantee that that's what the outcome would be.

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Speaker 3: So I'd be inclined to just chalk it up as

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Speaker 3: a negative experience and move on. Of course, if there

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Speaker 3: are more issues with this teammate, I would really be

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Speaker 3: on my guard. And if you start feeling uncomfortable, then

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Speaker 3: it's your turn to raise a complaint.

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Speaker 4: Thank of you all, James. It's an interesting one, isn't it.

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Speaker 4: Is there any pushback against I guess, low level complaints

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Speaker 4: of bullying or erroneous complaints of bullying, or people using

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Speaker 4: complaints of bullying as a way to you know, for

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Speaker 4: their own career, or punishment because they don't like someone,

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Speaker 4: Because that must happen quite quite a lot, right.

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Speaker 3: Oh definitely. You know. I sometimes joke that there hasn't

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Speaker 3: been a single person who's been performance managed that hasn't

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Speaker 3: claimed bullying. It's almost guaranteed these days, and I think

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Speaker 3: I think some of this comes from a lot of

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Speaker 3: managers don't actually have any management training. And you know

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Speaker 3: it was key with none of us want to be

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Speaker 3: the bad guy or bad girl, and so we have

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Speaker 3: a bit of difficulty managing people sometimes and as soon

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Speaker 3: as you do try and manage someone, you get accused

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Speaker 3: of being of being a bully.

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Speaker 2: Do you find with the smaller businesses they are a

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Speaker 2: bit more lost at seeing those situations because they're not

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Speaker 2: big enough to have an HR department. When that situation unfolds,

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Speaker 2: clearly they should speak to someone like you, Gareth, but

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Speaker 2: they feel a bit lost about what to do and

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Speaker 2: how to deal with it.

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Speaker 3: Oh, definitely. I mean you look at New Zealand's economy.

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Speaker 3: It's made up mainly of small and medium enterprises. You know,

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Speaker 3: someone in their partner and maybe an apprentice or something

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Speaker 3: like that. It's pretty difficult to navigate the complexities of

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Speaker 3: employment law and you know getting advice this is not cheap.

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Speaker 4: Yeah, well, Tyler gave me a pretty i'd say, pretty

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Speaker 4: lame thank you for a coffee that I got on there.

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Speaker 2: I bully him every day, Garrett. These raise complaints, It

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Speaker 2: doesn't get anyway.

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Speaker 3: It doesn't ask for it, he does.

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Speaker 4: It was a microaggression not thanking me enough for the coffee.

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Speaker 4: I got it.

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Speaker 2: I remember there for tomorrow. Oh eight one hundred and

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

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Speaker 2: got a question or concern at your place of work,

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Speaker 2: if you're the boss or the worker. Gareth Abdenall is

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Speaker 2: in studio with US Employment, Workplace and Information expert and

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Speaker 2: director of abdenor Employment Law. A few texts coming through

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Speaker 2: on nine to nine two. This one get a Gareth,

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Speaker 2: I work two jobs. The boss of one of my

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Speaker 2: jobs wants to change my hours which conflict with my

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Speaker 2: other job. Do I need to accept the change of

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Speaker 2: hours they are set in my contract from June?

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Speaker 3: It really depends on what else is in your contract.

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Speaker 3: A lot of contracts have a clause that the employer

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Speaker 3: can vary the hours if there's a genuine business reason

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Speaker 3: for it, as long as they consult with you first.

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Speaker 3: Of course, there is that overlying duty to act reasonably.

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Speaker 3: So I guess the question is why does the boss

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Speaker 3: of one of the jobs want to change this person's

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Speaker 3: hours and in the agreement are they legally entitled to?

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Speaker 3: You know, I'd have a discussion with them. There may

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Speaker 3: be a genuine reason, and if you don't agree to it,

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Speaker 3: they may do a restructure and disestablish the role. So

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Speaker 3: you know, try and be constructive and try and find

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Speaker 3: a way that works for both of you.

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Speaker 2: I imagine that it could be also quite tricky, Gareth, if

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Speaker 2: she if that's this person is working two jobs and

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Speaker 2: one of the bosses doesn't know about the other job.

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Speaker 2: That can create some tension, right that, if they don't

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Speaker 2: know you're working another position and you're not giving your

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Speaker 2: full attention to the job that you're yet you're employed

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Speaker 2: to do.

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Speaker 3: Yeah. Yeah, so your employer can't prevent you from having

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Speaker 3: a second job, but they can prevent you from having

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Speaker 3: a second job if it conflicts with with your obligates

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Speaker 3: under that job. And you know, this is kind of

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Speaker 3: one of those situations, isn't it.

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Speaker 2: Yeah, keep those takes coming through a nine to nine two.

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Speaker 2: But let's go to the phones. Joe, you've got a

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Speaker 2: question for Gareth.

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Speaker 7: Oh, hey, DoD Gareth. I'm Joe here. Hi i am

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Speaker 7: I am a manager of a company at a small company.

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Speaker 7: I've got a new recruit. He's just four months old.

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Speaker 7: He's got a probation period of six months, so going forward,

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Speaker 7: we would not like to continue with him. So I

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Speaker 7: would like to know would be the consequences that I'll

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Speaker 7: have to face if I give him a notice.

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Speaker 3: Yeah, if you give the person notice now and you

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Speaker 3: haven't gone through the process that's set out in the contract,

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Speaker 3: it could be very expensive, indeed, because it would most

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Speaker 3: likely be an unfair dismissal, and they may get compensation,

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Speaker 3: they may get lost wages, and of course they may

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Speaker 3: be reinstated to their roles. So you may dismiss this

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Speaker 3: person and then find that the court says they are

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Speaker 3: entitled to come back. So I would strongly suggest that

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Speaker 3: in a situation like this you take some advice or

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Speaker 3: at a very minimum, follow the process that's set out

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Speaker 3: in the agreement in the probationary period. I know two

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Speaker 3: months seems like a long time, but if you get

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Speaker 3: this wrong, it's going to cost you a lot more

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Speaker 3: than two months wages.

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Speaker 7: All right, But in my agreement, it clearly states that

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Speaker 7: the probation within the probation period, the notice pit is

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Speaker 7: just one week, So I just need to give him

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Speaker 7: a week's notice, right.

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Speaker 3: Well, you need to follow the process that's set out,

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Speaker 3: so you can't under a probationary period. It's not like

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Speaker 3: a trial period. You can't just tell someone that it's

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Speaker 3: not working out and they need to go. You still

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Speaker 3: have to act in good faith and you have to

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Speaker 3: consult with them. So this is not really straight forward

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Speaker 3: ABC type thing. I strongly suggest that you get some

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Speaker 3: advice on this one, because if you get it wrong,

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Speaker 3: it's going to be expensive.

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Speaker 2: So good luck, good luck, all right, thank you, all right,

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Speaker 2: thank you very much.

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Speaker 7: Dan.

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Speaker 2: How are you this afternoon?

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Speaker 7: Yeah?

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Speaker 5: Mate? You good yourself?

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Speaker 2: Yeah?

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Speaker 7: Good?

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Speaker 2: Gareth is standing my good Gareth.

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Speaker 5: I'm a pretty much a leading hand here at this

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Speaker 5: construction industry. We work in civil and infrastructure and all that.

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Speaker 5: So pretty much what my issue was, I've pretty much

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Speaker 5: started probably two weeks ago, and as the last week

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Speaker 5: had gone by, I had been paid in short due

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Speaker 5: to a few opinions that my employer reckons that you know,

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Speaker 5: sort of for the public holiday. So what's happened is

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Speaker 5: I started about two weeks ago on the Monday, which

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Speaker 5: we all know was a public holiday or King's birthday,

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Speaker 5: and they clearly stayed to my contract also. But with that,

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Speaker 5: with that start date, he had pretty much affwarded me

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Speaker 5: another email saying, can we have you start on the third,

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Speaker 5: which on a Tuesday, and then well pretty much following

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Speaker 5: up to my next pay week. I was paid short

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Speaker 5: eight LS, and I pretty much argued the point with him,

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Speaker 5: but he reckons that. Oh he sent me a follow

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Speaker 5: up email saying that the third is my start date,

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Speaker 5: which then avoids him paying eight LS. Just wanting to

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Speaker 5: know any way around this or if if he's correct

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Speaker 5: or if I'm incorrect.

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Speaker 3: Gosh, that sounds a bit rough. Not a great way

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Speaker 3: to start off an employment relationship, is it.

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Speaker 5: Not?

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Speaker 3: Really?

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Speaker 5: I mean, I'm not really looking to battle it out either,

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Speaker 5: because I'm not a bit worried that I'll lose all

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Speaker 5: the benefits that I do have at the moment, which

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Speaker 5: is not in my contract.

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Speaker 3: But you know, yeah, definitely, it really depends on what

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Speaker 3: was actually agreed. If it was agreed that the Monday

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Speaker 3: would be your start date, I think you've got a

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Speaker 3: very good case that you should be paid for the

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Speaker 3: public holiday. An employer can't just change your start date

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Speaker 3: if that has already been agreed, and if that was

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Speaker 3: agreed in the contract and both people signed it, well,

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Speaker 3: I think it's going to be a bit difficult for

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Speaker 3: your employer to argue that it changed.

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Speaker 1: That's it.

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Speaker 3: As you said before, do you really want to die

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Speaker 3: in a ditch over this one? It's eight hours pay

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Speaker 3: and you know, if your employer is adamant that he's right,

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Speaker 3: even if he's not, things are going to get unpleasant

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Speaker 3: and you may choose just to swallow it on this occasion.

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Speaker 3: But yeah, it doesn't seem right, and I wouldn't be

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Speaker 3: very happy if it was me.

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Speaker 5: Yeah, it's just it's a hard one. Like at one

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Speaker 5: time you don't really want to battle it out and lose,

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Speaker 5: you know, the good faith of your employers. But then

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Speaker 5: the other hand, you don't really want to be taken

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Speaker 5: advantage of as well.

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Speaker 3: So totally, And I guess the thing I would be

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Speaker 3: thinking is, you know, if someone wants to screw me

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Speaker 3: out of a day's public holidays, is that someone that

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Speaker 3: I really want to be working with? And you know,

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Speaker 3: maybe maybe you should be looking for other opportunities.

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Speaker 5: Yeah, yeah, yeah, probably right than end.

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Speaker 2: Yet, good luck and a bit to think about there.

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Speaker 2: This is an interesting question.

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Speaker 5: Hi.

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Speaker 2: I own a retail shop with security cameras covering the

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Speaker 2: sales floor and office. The cameras record audio as well

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Speaker 2: as video. But as far as my employees know, it's

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Speaker 2: just video. Do I have to let them know that

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Speaker 2: it's covering audio as well?

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Speaker 3: Yes? Yeah, And why are you recording audio?

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Speaker 1: Thanks?

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Speaker 4: The recording audio makes it and such another level, doesn't

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Speaker 4: it totally creepiness?

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Speaker 3: I'd be really uncomfortable with that if if I was

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Speaker 3: one of the employees, and I'd be going, well, hang on,

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Speaker 3: why are you spying on me? You know, you've you've

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Speaker 3: got to have a genuine, reasonable reason to record people

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Speaker 3: in the workplace. Now, video surveillances is not unusual. There's

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Speaker 3: there's really good health and safety reasons for that. There's

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Speaker 3: security reasons for that. But why are you recording audio?

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Speaker 3: You know, just turn it.

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Speaker 4: Off and look, you'll hear them backstabbing about you. And

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Speaker 4: that's what they do that people, employees backstad about their bosses.

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Speaker 4: It's just how they get let out steam and you

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Speaker 4: just feel bad.

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Speaker 3: You don't want to hear it.

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Speaker 2: You do not want to hear it.

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Speaker 4: You don't want to hear what your employees are saying

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Speaker 4: about you.

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Speaker 3: And if they find out that you are recording audio

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Speaker 3: and you haven't told them, not only are they going

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Speaker 3: to have grounds for personal grievance. They are also going

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Speaker 3: to have grounds to make a complaint to the Privacy

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Speaker 3: Commissioner and and it's going to be all bad. So

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Speaker 3: we don't do it.

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Speaker 4: The recording audio on our workplace, Tyler.

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Speaker 2: How dare they that I'm taking people by?

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Speaker 4: They're blatant with these big microphones in our faces? And Gareth,

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Speaker 4: how many times this text ass? Can a twelvemonth fixed

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Speaker 4: term role be rolled on before it becomes permanent?

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Speaker 3: Ah Corross. So there's some large organizations in New Zealand

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Speaker 3: that make a habit of these rolling twelve month fixed

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Speaker 3: term contracts, and I think they are shaky as here legally,

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Speaker 3: and if anyone tests it, the organizations might be running

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Speaker 3: for the hills. You've got to have a genuine business

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Speaker 3: reason to have a fixed term agreement, and one of

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Speaker 3: those reasons can't be that you're not sure about funding.

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Speaker 3: The courts have made it very clear that in a

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Speaker 3: situation like that, if there's not enough funding, then you

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Speaker 3: need to have a restructure. So I can't see many

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Speaker 3: good reasons for a rolling twelvemonth fixed term contract.

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Speaker 2: Brilliant as always, Gareth, that's all the time that we have.

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Speaker 2: But thank you very much as always, and we'll see

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Speaker 2: you back in about a month.

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Speaker 3: Fantastic, Thanks guys.

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Speaker 2: Stay warm down there. How cool is it?

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Speaker 3: Oh, it's lovely blue skies.

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Speaker 2: Tell wonderful Christ.

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Speaker 4: Here it's thirty one degrees Here in our studious I've

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Speaker 4: pumped the air conditioning right up to test Tyler's resolve.

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Speaker 2: Outrageous See another HR complaint. Isn't it all right? That

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Speaker 2: is Gareth abden Or here is an employment, workplace and

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Speaker 2: information expert and director of Abdenor Employment Laura. If you

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Speaker 2: want to get a hold of him, Abdenorlaw dot enz.

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