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
Claire
Mansell
Claire is an employment law specialists and regularly represent
employers and employees in the Employment Relations Authority.