Employment Relations Update, 15 February 2010
Welcome to the first newsletter of the employment law team of Parker & Associates!
We will try to send these out every six weeks or so to everyone who is interested in receiving brief but informative articles and tips that will be useful in their business. If you would like to be taken off this list please just send an email to Sherianne and say so.
In this issue:
- Introducing the team
- The Government’s employment law agenda for 2010
- Employees’ conduct outside the workplace a valid ground for dismissal
- Authority clarifies approach to costs
The team
We are a specialist litigation practice based in Wellington. One of our areas of particular expertise is employment law.
Our aim is to assist clients to achieve appropriate and defensible employment outcomes, with the support of our litigation services as required.
Our team includes:
Johanna Drayton, Partner
Johanna joined the firm as a partner on 1 April 2009, having previously worked as a Senior Associate at DLA Phillips Fox. Johanna specialises in employment, health, education, privacy and official information law, commercial litigation and dispute resolution. Johanna has 17 years experience. She was admitted in 1993.
Stuart Dalzell, Senior Associate
Stuart joined the firm as a senior associate in September 2009. Stuart is an accomplished employment lawyer and advocate, having over 11 years’ litigation and dispute resolution experience gained at Chapman Tripp in Wellington. He was admitted in 1998.
James Wollerman, Solicitor
James completed an LLB at the University of Otago in 2007 and finished his BA in Political Science at Karls Ruprecht University in Germany in 2008. James joined Parker & Associates as a law clerk in December 2008 and was admitted as a barrister and solicitor in February 2009. Since working at Parker & Associates James has advised on employment disputes and assisted in employment litigation, including acting as junior counsel in Savage v Capital & Coast DHB (see below).
Nicola Howarth, Solicitor
Nicola completed an LLB and BA (Film and Media Studies) at the University of Otago in 2008 and was admitted as a Barrister and Solicitor in October 2009. She previously worked at Parker & Associates as a law clerk during summer 2007 and then joined us permanently in May 2009. Since working at Parker & Associates Nicola has assisted in providing general employment advice, involving restructures and personal grievances, as well as assisting in delivering a presentation to the Human Resources Institute of New Zealand on topical employment law issues.
Government’s legislative agenda on employment for 2010
Several moderate steps are proposed to address perceived overregulation of the workplace.
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Rest and meal breaks
- One 10-minute paid rest break if the employee has worked between 2 and 4 hours, to be taken at the 2 hour point;
- One 10-minute paid rest break and one 30-minute meal break if the employee has worked between 4 and 6 hours, to be taken at the 2 and 4 hour points;
- Two 10-minute paid rest breaks and one 30 minute meal break if the employee has worked between 6 and 8 hours, to be taken at the 2, 4 and 6 hour points.
- If the employee agrees to trade their rest breaks and meal breaks for certain compensatory measures; or
- If and to the extent that rest breaks and meal breaks cannot reasonably be provided, having regard to the nature of the work performed by the employee. (An example might be solo watch tower-operated regional airports.)
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Changes to definition of ‘serious harm’
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Transfer of undertaking provisions
The Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill sets out the Government’s framework for overhaul of the previous administration’s much-criticized breaks legislation.
Under the bill there will be a requirement either for meal breaks and paid rest breaks, or for compensatory measures.
Meal and rest breaks
Gone will be the requirements as to duration and timing of breaks – specifically:
Instead, under the provisions in the bill, employees would be entitled to breaks that provide “reasonable opportunity…for rest, refreshment, and attending to personal matters”; and that are “appropriate for the duration of the employee’s work period.”
Duration and timing is left to the agreement of the parties, failing which the employer may specify “reasonable” times and durations.
The objective is to allow employers flexibility to maintain continuity of service or production. Also to that end employers may impose “reasonable and necessary” restrictions, so that a break may be subject to interruption and may not be able to be taken away from the workstation.
Compensatory measures
Under the provisions in the bill, employers are not required to provide rest breaks and meal breaks in certain circumstances. They are:
‘Compensatory measures’ are defined to include (without limitation) a later start time, earlier finish time or an accumulation of time off in lieu.
The obligation to report serious harm incidents to the Department of Labour has the greatest impact on employers, who tend to carry the heaviest regulatory load under the Health and Safety in Employment Act 1992.
It is therefore notable that the Minister of Labour, Kate Wilkinson, has promised to reduce that burden, by clarifying what must be reported to the Department.
In particular, the proposal is to redefine the statutory threshold for reporting – “serious harm“, currently meaning death or other serious harm (as specified in the schedules to the Act).
Unfortunately there is little detailed information as to the proposed rule changes. The Minister’s press release indicates that serious harm will include:
“…physical injuries leading to an employee being unable to perform their normal duties for 10 or more calendar days. It will also include any permanent injuries, specified events such as electrocution or loss of consciousness, and diagnosed occupational illnesses.”
The final definition, in the legislation, will be critical to whether the proposed changes entail tinkering with the existing system or a real tightening of the definition – and lightening of employers’ regulatory burden. Such legislation is proposed to be introduced “in the New Year”.
The Minister has also announced a review of the continuity of employment provisions of the Employment Relations Act, which relate to protection of employees in cases of sale, transfer or contracting in or out of business. A discussion document is expected in February 2010. We will keep you posted.
Employees’ conduct outside the workplace a valid ground for dismissal
Employees may be dismissed for misconduct which occurs outside the workplace if there is a clear relationship between the conduct and the employment.
Such a relationship was found recently in Fleming v Delamore & Reidy Mental Health Community Support Services Services Limited (Employment Court, 12 November 2009). There, Mr Fleming worked for Delamore & Reidy, a provider of full-time care for mental health patients, as a social worker and service manager in one of its five homes.
In October 2008, Delamore & Reidy received a complaint from another mental health provider, ProActive, that Mr Fleming had verbally abused one of its resident patients during a support group meeting led by Mr Fleming in the course of his employment with that different employer, ProActive. Following a formal meeting, in which Mr Fleming first said the complainant and witnesses were not reliable because they were intellectually disabled and then refused to participate further in the employment process, Delamore & Reidy terminated Mr Fleming’s employment.
Mr Fleming applied for reinstatement and compensation for for unjustified dismissal and unjustified disadvantage in his employment. Because the alleged misconduct occurred outside of Mr Fleming’s working hours, a key issue was whether it could be relied upon by Delamore & Reidy to justify the dismissal.
Judge Perkins dismissed Mr Fleming’s claims. Accepting that Mr Fleming’s behaviour and attitude towards patients or residents under his supervision went to the root of his employment with Delamore & Reidy, Her Honour held that the decision to dismiss was in accordance with what a fair and reasonable employer would have done in all the circumstances at the time (s103A, Employment Relations Act 2000). The allegation had the clear potential to undermine trust and confidence in Mr Fleming in his employment.
Authority clarifies approach to costs
The Employment Relations Authority may feel more emboldened to depart from its usual approach to costs following two recent Authority costs decisions.
On 2 December 2009 the Authority handed down its costs determination in John v Airways Corporation. The Authority ordered the unsuccessful party, Mr John, to pay total costs of $17,500 to Airways, finding that the case, which had been heard over 3 ½ days, was outside “the general run of cases“. Finding that the case was far more significant, time-consuming and complex to determine than the majority of cases, the Authority accepted Airways’ argument that it was an appropriate case in which to award an additional $9,000 for preparation time, on top of the $8,500 it would otherwise have awarded.
* Senior Associate Stuart Dalzell was counsel for Airways.
On 11 November 2009 the Authority handed down its costs determination in Savage v Capital & Coast DHB. The Authority ordered the unsuccessful party, Ms Savage, to pay total costs of $16,000 as a contribution to the Capital & Coast’s legal costs. Because Ms Savage had declined not one, but two “Calderbank” offers to settle, the Authority held it was appropriate to award an additional $10,000, on top of the $6,000 it would otherwise have awarded.
* Partner Johnanna Drayton and solicitor James Wollerman were counsel for Capital & Coast.