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.
Contact
Claire
Mansell