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Employment law issues - setting off on the right foot

By Claire Mansell - 7 Mar 2014

With the New Zealand Herald reporting that business confidence has risen to its highest level in almost 20 years, the start of 2014 has seen a great deal of increased optimism in the economy. As businesses prepare for a year promised to be marked by strong economic growth, we have seen a number of mergers and acquisitions and streamlining of existing businesses through redundancies. There has also been a lot of activity in the employment market due, perhaps, to employees having greater confidence to make a move. 

In this environment it is important for both employers and employees to ensure that employment agreements are correctly drawn up at the outset of an employment relationship. This negotiation will be an employee's first taste of an employer's attitudes to its employees. One size doesn't always fit all when it comes to employment agreements. For example it might be worth considering whether a 90 day trial period is really suitable for higher level employees, especially those who have been approached by a business to make a move to the new company.

Casual employees - a stop-gap?

As the economy remains in transition, it is not uncommon for employers to increase their work force on a gradual basis starting by engaging more casual employees. Unfortunately some employers take a casual attitude to employment agreements when it comes to casual employees. Written employment agreements are a statutory requirement. Care must be taken in the wording of that agreement to ensure that the relationship is correctly defined. If the employee is required to work at regular times in a regular place and the worker and the employer are under obligations to each other, the relationship may in fact be an on-going employment relationship rather than a casual one. This will have implications for the terms that will need to be included in the agreement and how it can be brought to an end. 

Casual employees are also beneficiaries of the good faith obligations in the Employment Relations Act 2001. A truly casual employee can have no expectation of being re-engaged at the end of a casual period of work. However, a casual employee may bring a personal grievance for unjustifiable disadvantage if he or she has not been treated in good faith. For example, one such employee successfully brought a claim when he wasn't offered further casual work because of the employer's concern around his performance. These concerns were not communicated to the employee and he was not given an opportunity to comment.  His personal grievance was upheld. 

Evolving relationships

Employment relationships can evolve over time. Employees who have begun as casual employees, can over time become an integral part of a work force. Where this happens, an employer should be vigilant to ensure that the employment agreement is updated. 

Over the next few weeks we will be looking at health and safety issues and issues that can arise on termination of an employment relationship. The cost of any of these issues to an employer can be dramatically reduced by investing in legal advice up front to ensure that the appropriate employment terms and policies are all in place. 

At Martelli McKegg we can assist you in tailoring an agreement to an individual employee or class of employees. Please contact us for advice or assistance in relation to employment agreements and policy documents.


Claire Mansell


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