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Tips for better employment relations over Christmas

By Andrew Steele and Claire Mansell - 6 Dec 2013

'Tis the season to be jolly. It also seems to be a season of employment disputes and problems. Here are some of the more common issues our employment lawyers have encountered.

1. Redundancy/Restructuring

While it's not exactly full of Christmas cheer to begin this list with a subject that is often heart breaking - it is not only Mr Scrooge making redundancies around the holidays. Often unpleasant things such as restructures are put off during the year and employers are forced to have a hard look at things come Christmas. 

As making redundancies prior to Christmas is likely to be more emotionally charged than at other times of the year, it is crucial that employers follow a fair and proper process. It is not a process which can be rushed through and employees' views need to be taken into account.

If you are looking to restructure your business we recommend that you speak to us first.

2. Christmas party fun (or too much fun)

The annual Christmas party should be a happy occasion and a chance to unwind after a long year. Unfortunately, the combination of alcohol and mistletoe can lead to a host of employment issues including (but unfortunately not limited to) disorderly behaviour, sexual harassment, violence and drug use. 

The Employment Relations Act case of Kemp v Westpac Banking Corporation is a good example of the problems that can arise and how they can impact an employer. In that case, a number of employees were smoking drugs during the Christmas party. Before lighting up, the employees asked one of the managers if it was okay to do so. The manager said it was fine but did not herself smoke. Another manager saw the group smoking and told them to stop. An investigation process ensued and the drug users were dismissed for serious misconduct. However, because of an inadequate investigation process, the first manager's involvement was not revealed until after the investigation had ended. Moreover, when the first manager's conduct did come to light, the employer only gave her a warning.

The Employment Relations Authority found that the process was unfair not only because the employer did not properly investigate the claim, but also because of the disparity in the way the employees were treated as opposed to the first manager.

Another potential pitfall involves the Christmas party guest list.  Employers must take care when inviting employees to the Christmas party. In Foley v Auckland Debt Collections Limited, the Employment Relations Authority was critical of an employer who arranged a separate Christmas party for the employees and their children and didn't invite the one person in the office who didn't have children.

3. Casual Employees

For many companies, Christmas is the busiest time of year and they will employ extra staff to help with the overload. When you are employing people for a fixed period or on a casual basis, you need to make sure they are given the correct employment agreement and are dealt with properly. If you don't, they may be deemed to be permanent employees with an on-going expectation of employment.

For example, if an employee on a fixed term agreement works past the date on which the agreement was due to expire, they will be considered a permanent employee.

4. Holidays

Much to employees' delight, Christmas provides the bulk of the year's allocated statutory holidays. It's important to remember that any employees working on a statutory holiday will be entitled to time and a half plus a day in lieu. While determining what time and a half is sounds straight forward, it can be complicated if employees work irregular hours or they are entitled to additional payments such as commission.

The above situations have the potential to turn a happy holiday into the nightmare before Christmas.

If you have any employment law questions, need assistance with any of these issues (or have a few stories of your own to add!) please feel free to contact us.

Contacts

Andrew Steele

Claire Mansell

Andrew and Claire are employment law specialists and regularly represent employers and employees in the Employment Relations Authority.

 

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