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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: Gareth Abden or you know him now. He's an employment,

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Speaker 2: workplace and information expert. He joins us every fortnight.

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Speaker 3: Geta Gareth Good day guys.

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Speaker 2: Hey man, I got a question you'd like to put

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Speaker 2: Togareth about your contract, your employment law, anything. Now's your

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Speaker 2: opportunity our eight hundred and eighty ten eighty or if

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Speaker 2: you prefer to text us, you can do that. Just

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Speaker 2: text your question to nine two nine two straight away.

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Speaker 3: Sue's given us a call.

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Speaker 4: Hello, Sue, Hello, I'm putting over. I am on a bluetoose,

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Speaker 4: but I will for like a Christmas road noise. So

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Speaker 4: my question is I have a colleague who's going through

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Speaker 4: cancer treatment chemotherapy, and our workplace has decided, without any

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Speaker 4: consultation with her, that she has to use her six

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Speaker 4: leave and then her holiday pay to take the two

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Speaker 4: days off a week sorry a fortnight that she's having chemos.

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Speaker 4: I wanted to know because in my mind that's not

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Speaker 4: right without any discussion or anything. Is that is that

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Speaker 4: okay by an employer to do that?

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Speaker 5: Great question? So yes, Technically that is the appropriate way

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Speaker 5: to deal with this situation. Some employers do make other

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Speaker 5: arrangements and provide additional leave for people in their circumstances,

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Speaker 5: but technically that's what sick leave is for. And yes,

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Speaker 5: it's it's really unfortunate for that particular employee.

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Speaker 4: And you know, I think she is capable of working.

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Speaker 4: She can work remotely while she's only on treatment one

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Speaker 4: day when she's in the hospital, and then the other

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Speaker 4: day she's got a drippy thing going on, right, and

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Speaker 4: she's capable of working. That's what she said. I'm capable

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Speaker 4: of working. And but but my question two was how

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Speaker 4: care is that without your new discussion with her, she

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Speaker 4: is just told she's yeah.

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Speaker 5: I mean, as I always say, there is this mutual

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Speaker 5: obligation of good faith. So there should be a discussion

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Speaker 5: and if she thinks it's unfair, she should raise it.

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Speaker 5: A lot of employees do have this idea that they're

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Speaker 5: entitled to work from home, and that's not correct either.

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Speaker 5: If if this employee's employment agreement says that they will

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Speaker 5: work from the employer's premises, then that's where they need

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Speaker 5: to work from unless there's an agreement for them to

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Speaker 5: do otherwise.

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Speaker 4: So yeah, agreement.

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Speaker 5: Yeah, so you know, she she should raise this and

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Speaker 5: have a discussion with the employer. And she doesn't think

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Speaker 5: she's being treated fairly, she always has the opportunity to

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Speaker 5: raise a grievance.

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Speaker 6: And she can take a support person with her, couldn't she.

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Speaker 3: Yes, she can.

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Speaker 2: Yeah, yeah, could be used to good question sue good.

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Speaker 4: We're in different towns, so it's not wouldn't work, but yes,

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Speaker 4: I'm gladly go okay, so basically to summarized, sorry, I

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Speaker 4: won't take that much more time that the employee is

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Speaker 4: the right to do this, yes.

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Speaker 5: But there should be a discussion.

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Speaker 3: Yeah, yeah, thank you, so good on you. Best of luck.

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Speaker 2: Hello Andrew, Hello, how are you guys?

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Speaker 3: Good? Thank you mate, how can we here?

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Speaker 7: It's always good to listen to you guys. Carry on it, yeah,

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Speaker 7: thank you, Matte.

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Speaker 3: Anyway, we'll bring it on, appreciate it.

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Speaker 7: I think for the time for the question, Yeah, I've

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Speaker 7: just reached the end of my ninety day trial. Well,

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Speaker 7: you know, my three months is up. What's the process

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Speaker 7: of my employer Now, I've sort of been doing fifty

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Speaker 7: hour weeks since I've started.

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Speaker 5: Well, Andrew, and unless your employer tries to terminate in

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Speaker 5: reliance on the ninety days. You you just keep working.

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Speaker 5: It's it's one of those things where unless they do

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Speaker 5: something to rely on those termination provisions, you just you

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Speaker 5: keep working and your employment is permanent. Okay, So you

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Speaker 5: don't have to do anything and they don't have to

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Speaker 5: do anything, and if neither of you do anything, it's

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Speaker 5: all good.

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Speaker 2: Okay.

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Speaker 7: So I started back as a casual. Then I started

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Speaker 7: back as a casual, and my hours was supposed to

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Speaker 7: be thirty hours a week fifteen.

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Speaker 5: Yeah, Well, I mean if you can't be a casual

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Speaker 5: on a ninety day trial period, So either you're casual

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Speaker 5: or you're a permanent employee, you're on a ninety day

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Speaker 5: trial period. It can't be both. So it sounds like

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Speaker 5: there might be a bit of confusion about it what

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Speaker 5: your terms are, and I would be I'd be asking

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Speaker 5: for a copy of your contract and raising that with

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Speaker 5: your employer. And if your hours were supposed to be

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Speaker 5: thirty hours and you've been working fifty hours for three months,

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Speaker 5: you might want to raise that as well.

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Speaker 7: Yeah, because obviously I don't get the full holiday benefits.

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Speaker 6: Yeah.

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Speaker 3: Good, good on you, Andrew, Thank you very much. For

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Speaker 3: calling mate.

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Speaker 2: It is twenty one minutes to four Texas.

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Speaker 6: Says Hi Gareth. I'm a tradee and our boss has

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Speaker 6: introduced an on call roster out of the blue, not

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Speaker 6: in the contract, not really any consultation, not everyone as

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Speaker 6: part of it either. We're expected to be on call

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Speaker 6: for one week every six I have a life outside

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Speaker 6: of work, and I feel like this isn't what I

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Speaker 6: signed up for. Surely this isn't legal. But is there

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Speaker 6: anything I can do without ruining my relationship with my boss?

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Speaker 3: Yeah?

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Speaker 5: That's fantastic because often people forget that second part. You

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Speaker 5: can go, You can go in like a bull in

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Speaker 5: a china shop, but generally that means you end up leaving.

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Speaker 5: I would raise it in as constructive a way as possible. Generally,

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Speaker 5: if there is a variation in your hours or going

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Speaker 5: on call when that wasn't previously the case, that needs

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Speaker 5: to be agreed to now. Of course, if your employer

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Speaker 5: hasn't done that, you're in a pretty sh strong position

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Speaker 5: to raise this, But do it constructively. Is there room

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Speaker 5: for a compromise. It sounds to me that you want

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Speaker 5: to keep this relationship on good terms. Maybe there's room

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Speaker 5: for a compromise that means you can do some on

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Speaker 5: call work, you get some compensation for it, and the

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Speaker 5: legislation does require you to get some sort of benefitable

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Speaker 5: compensation for being available to work outside of normal hours

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Speaker 5: that also lets you do your hobbies and your life

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Speaker 5: outside of work. That would be my suggestion.

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Speaker 2: Okay, Gareth, I worked for a part of the DHB.

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Speaker 2: I recently left, but they got me to sign a

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Speaker 2: form that said literally that I would not bad mouth

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Speaker 2: of them.

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Speaker 3: Is this legal? And how long before I can comment?

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Speaker 5: Yeah, in general terms and not commenting on this particular

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Speaker 5: caller's case because we don't have enough information that you

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Speaker 5: could agree to that. But generally there should be some

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Speaker 5: sort of consideration for it, so they should payment sort

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Speaker 5: of thing a payment, and then you're agree not to

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Speaker 5: make any negative comments.

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Speaker 2: Right, So without a payment, does any employer have the

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Speaker 2: right to say you can't disparage us?

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Speaker 5: No?

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Speaker 6: Okay, that must have been in writing at some stage.

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Speaker 5: I would have thought so, I would have expected that.

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Speaker 5: Of course, if you if you make negative comments about

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Speaker 5: anyone and it's not true, it could be defamation. So

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Speaker 5: tread lightly.

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Speaker 2: Good answer, Paul, Hello mate o, good Hey Paul, welcome.

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Speaker 3: Yeah, good, thanks you.

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Speaker 8: Good, good good. Hey, just the opit of a weird question.

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Speaker 9: If you've.

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Speaker 8: Basically coffee coffee shop and one of the the people

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Speaker 8: that works at the shop decides to wear a hamas

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Speaker 8: khalifa around their neck to work, obviously they're anti Palestine

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Speaker 8: from the river to the sea is and you just

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Speaker 8: you know, coffee shops. There's a lot of availably Jewish

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Speaker 8: people from the local old folks home. That's incredibly offensive

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Speaker 8: to them. But do we have the right to come

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Speaker 8: to take it off?

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Speaker 4: Yeah?

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Speaker 5: That is an odd but very topical question, and a

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Speaker 5: lot really depends on, you know, is there something in

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Speaker 5: the employment agreement that says that they have to wear

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Speaker 5: a uniform or presentation requirements? And if not, you really

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Speaker 5: need to have a discussion with them. You're the boss,

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Speaker 5: are you, Paul, Yeah, yeah, and explain the situation. Now,

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Speaker 5: you do need to be careful that, you know, people

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Speaker 5: do have freedom of expression, but if that's impacting on

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Speaker 5: the job and on the business that they're working at,

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Speaker 5: that could potentially be a breach of good faith. But

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Speaker 5: it's not a straightforward situation and you need to be careful.

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Speaker 3: Right, Yeah, that is tricky, isn't it.

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Speaker 2: So can an employer those specifically state, you know, particularly

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Speaker 2: around something like you address poor Can they specifically state

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Speaker 2: what they their wishes if they let's say they pro

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Speaker 2: Palestine or yeah, yeah, right.

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Speaker 5: You can ask them. But you know, I mean, someone

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Speaker 5: wearing something supporting Palestine could be offensive to some people,

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Speaker 5: but but it could be a legitimate belief of theirs.

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Speaker 5: And likewise, someone wearing the star of David right could

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Speaker 5: be or there's Israeli flag that could be offensive to

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Speaker 5: other people. So you need to be very careful. You

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Speaker 5: can't discriminate because there's you know, legislation that prevents you

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Speaker 5: discriminating on certain grounds. And you need to be reasonable.

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Speaker 5: And as as we've seen in the media, you know,

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Speaker 5: when when people get involved in this debate, it is

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Speaker 5: quite easy to cause offense.

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Speaker 6: Yeah, but you can sit dress standards, you can't employ

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Speaker 6: you Yeah, okay, excellent.

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Speaker 8: Question posthumously in the in the in the contract and

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Speaker 8: I I can say, look, hey, we've made adjustment to

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Speaker 8: the contracts. Need you to sign here, this is safe,

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Speaker 8: this is now we now require a uniform. And these

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Speaker 8: are the stipulations around the uniform. What you can and

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Speaker 8: can't do.

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Speaker 5: Yeah, you'd need to consult with them, and most probably

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Speaker 5: the best way to do it would be to bring

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Speaker 5: in a policy rather than try and amend the employment agreement,

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Speaker 5: because I mean, in the employment agreement you need to

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Speaker 5: get their agreement to that. But this is something where

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Speaker 5: I really think you should you should actually take some

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Speaker 5: legal advice because the cost of getting it wrong a

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Speaker 5: most probably going to be worth spending some money on.

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Speaker 3: Yeah, very good free days.

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Speaker 2: It's got a problem, mate, Oh, thank you mate, good

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Speaker 2: good question difficult one. Hi Tom, good mate, Thank you,

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Speaker 2: Gareth standing by here.

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Speaker 9: That's a question. I went for a reasonably big company

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Speaker 9: of New Zealand, quite heavily juniorize, but I'm on an

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Speaker 9: individual employment agreement. I recently had a meeting with my

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Speaker 9: manager to discuss adding some additional terms just to help

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Speaker 9: with sort of the work conditions, and he advised me

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Speaker 9: that for an IA he was unable to trust any

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Speaker 9: of the terms of my contract, effectively saying I would

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Speaker 9: need to resign and reapply to the terms of my contract.

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Speaker 9: Is that correct?

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Speaker 5: No, that sounds that sounds pretty odd to me, and

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Speaker 5: it sounds like maybe he was just taking the easy

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Speaker 5: way out. I certainly I wouldn't be resigning just to

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Speaker 5: possibly get an amended agreement. Don't do that. But no,

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Speaker 5: that sounds odd to me.

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Speaker 9: How would you go about trying to negotiate that with

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Speaker 9: a manager that's sort of playing that line would be

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Speaker 9: a good angle.

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Speaker 5: Well, I'd most probably wait until I had something that

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Speaker 5: the manager wanted. You know, if you're if you're doing

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Speaker 5: extra hours that are over and above what's in your agreement,

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Speaker 5: or they want you to do something that's not technically

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Speaker 5: part of your agreement, you might want to have a

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Speaker 5: bit of a negotiation at that point. Otherwise, wait until

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Speaker 5: your annual review. But yeah, you know, as I always say,

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Speaker 5: changing an agreement requires agreement. But don't resign to possibly

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Speaker 5: get an amended agreement. That sounds.

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Speaker 9: Wanting to confirm that it was you know, I was.

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Speaker 9: I know that is actually a bit more so than that.

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Speaker 2: Yeah, definitely, thank you, Tom, Thank you, mate, thank you.

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Speaker 2: We'll take one more call Sime and hello.

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Speaker 10: There, Hello Jarrey? How are you good?

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Speaker 5: Good? How can we help?

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Speaker 7: He is?

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Speaker 10: I am sixty seven years old and I'm walking in

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Speaker 10: one of the supermarkets. I requested my hours to be

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Speaker 10: my days to be reduced from five days to four days,

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Speaker 10: but it was declined and I felt there was something

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Speaker 10: fishy about it. They just wanted me to resign. It's

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Speaker 10: just my feeling, but I cannot confirm that to you.

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Speaker 5: Yeah, you know, as I was saying to the previous schooler,

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Speaker 5: you can ask to reduce your hours and your employer

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Speaker 5: doesn't have to agree to that, as long as they

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Speaker 5: consider it in good faith. That they might want you

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Speaker 5: to resign, I don't know, and certainly it doesn't sound

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Speaker 5: like you have evidence of that, and if you want

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Speaker 5: to pursue it, FI you need evidence.

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Speaker 10: But I'm very sure it's done in bad faith because

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Speaker 10: I'm only reducing my hours too, by one hour, and

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Speaker 10: it's that very difficult to find someone. They just because

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Speaker 10: I'm working in a supermarket industry and it's normal to

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Speaker 10: hire every now and then, every now and then, and

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Speaker 10: there's no problem to the vacancy of ours.

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Speaker 5: Yeah, you may think that's mean, but as long as

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Speaker 5: they've considered your request, they are entitled to refuse it

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Speaker 5: or decline it.

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Speaker 3: Thank you, simin appreciate it.

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Speaker 6: Okay, last text here, how robust restraint of trade clauses

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Speaker 6: within contracts. I've got a contract that says I can't

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Speaker 6: work within the same industry in a similar role for

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Speaker 6: a period of six months.

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Speaker 5: Yeah, the starting point is that they need to be reasonable.

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Speaker 5: In reasonableness really depends on the particular circumstances of each

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Speaker 5: employment relationship. So what might be reasonable for a chief

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Speaker 5: executive of a major organization in New Zealand, it's going

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Speaker 5: to be very different from what's reasonable for someone working

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Speaker 5: in the corner deiry or that.

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Speaker 3: Makes sense coffee shop.

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Speaker 5: So you know it, it may be reasonable.

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Speaker 3: So can you contest it?

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Speaker 5: Yeah, you can, but of course if you've agreed to it,

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Speaker 5: you're kind of on the back fop true. Now, if

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Speaker 5: you don't think it's going to be enforceable, then the

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Speaker 5: courts have said the best thing to do is to

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Speaker 5: say to your employer, I'm leaving, I don't think this

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Speaker 5: is enforceable, rather than just going off and breaching it.

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Speaker 5: But it really depends, and it's difficult to know if

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Speaker 5: six months is going to be reasonable or not because

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Speaker 5: we don't know about the role. It could be reasonable,

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Speaker 5: it's at the it's at the upper end. Six months

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Speaker 5: is six months is, but it could be okay.

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Speaker 2: Last text and it's a yes or no, because we're

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Speaker 2: out of time, Gareth, O case, so you don't even

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Speaker 2: have a chance to expand on this. Hi, Gareth, I'm

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Speaker 2: an employee er. My employee requested a week's annual leave,

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Speaker 2: which I granted. However, I've since found out he used

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Speaker 2: that week off to work for his father, so he

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Speaker 2: hasn't rested. He's come back to work TRD. Is that

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Speaker 2: a legitimate way to use annual leave?

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Speaker 5: It depends?

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Speaker 3: It depends?

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Speaker 6: Is actually yes? I think he can do what he

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Speaker 6: likes when he's on leave.

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Speaker 5: Surely yes or no, as long as it doesn't conflict

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Speaker 5: with his obligations to his employer.

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Speaker 3: True.

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Speaker 2: But if the employer feels he comes back nack it

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Speaker 2: and isn't fit for purpose anymore, you.

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Speaker 5: Could potentially raise that as a question.

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Speaker 2: Yep, hopefully that helps. Wasn't quite yes or no? But

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Speaker 2: Gareth love having you in. Thank you very much, pleasure,

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Speaker 2: great questions, Gareth Abden or employment lawyer. Just a reminder

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

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Speaker 2: and not legal advice. Any information discussed does not intended

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

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Speaker 2: should not be relied upon as such.

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

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