November 3, 2020
Employment
Employers
The best employment law advice for employers
Taking on employees is a big responsibility for any business. You want them to do their best by you, and your employees expect you to treat them right. An employment relationship is a two way street that is meant to be built on good faith. If you feel like that good faith is being tested or broken, first take a deep breath, then seek advice before taking any action.
Here are our top three best pieces of employment advice for employers.
Check your employment agreement
Every single employee must have a written employment agreement, and you have to keep a signed copy on file. If you don’t have a written employment agreement for each of your employees, and you don’t have signed copy saved either in a filing cabinet or saved to a computer, you need to have a chat with us.
What does your employment agreement say? Ideally, you should have an employment agreement written specifically for your workplace and the unique challenges you face. There are many free versions of basic employment agreements online, and while they tick the box of making sure your business has employment agreements, they may not offer much more protection than that.
To truly make sure your kiwi business is protected, you need a customised employment agreement that specifically sets out everything you want and need for your company.
Can you dismiss an employee without warning on a 90 Day Trial
While you technically may be able to dismiss an employee on a trial period, we strongly recommend that you don’t take any action until you have sought legal advice.
There are strict procedures that must be followed for 90 day trial periods to be binding in New Zealand. It’s not an automatic condition that comes into force and it must be done correctly. For example, does your written employment agreement:
- Have a clause regarding a trial period?
- Have a set date for the start and end of that trial period?
- Comply with the Employment Relations Act 2000?
Just because you have a clause in your employment agreement about a trial period does not make it legally binding. With New Zealand employment laws recently tightening up around trial periods for employees, you must make sure the clause in your employment contract complies with the law and is legally binding.
Employment agreements must also be signed and dated before your employee starts work. If they turn up on their first day of work and sign the employment agreement while ‘on the job’ their 90 day trial period is invalid and cannot be enforced.
Good practice is to give a prospective employee their employment agreement, and ask them to take it away for a few days. Legally, they must have some time to review it and seek legal advice. Then have another meeting the day before they’re due to start work so you can both sign and date each other’s copy. An extra meeting before an employee starts work might seem like hassle now, but making sure their employment agreement is signed and dated before they start can save you a lot of hassle in the future.
What do I do if an employee is being bullied at work
Your first step is to go back to your employment agreement or a separate employee handbook. An employee handbook or employment agreement usually sets out the chain of command or the process to be followed in the event an employee is feeling bullied and comes forward with a complaint.
As an employer, it’s your responsibility to make sure everyone feels safe to come into work. If an employee comes forward with a bullying allegation, you must take action. Ask the employee for specific examples of how they were bullied. They will need to provide, in writing, specific actions, dates and times to show alleged bullying behavior.
You also have a duty to look after the employee accused of bullying. Allegations must be investigated and proven or disproven. While this is going on, both the alleged bully and victim both have the right to come to work. Especially if your company has fewer than ten employees, you may feel like you’re walking a very narrow line to make sure both parties are being treated fairly and in good faith.
If you’re one of New Zealand’s hard working SMEs and don’t have an HR department to rely on, Lawhub can act as an independent third party to help with the investigation process and to ensure everyone is treated fairly.
In instances of workplace bullying, communication is key. The employee making the complaint will want to know what’s being done and how long the process should take. If your employee does not receive clear communication from you around this, they may seek legal advice.
Once a workplace bullying investigation is completed, there are three outcomes you’ll need to deal with. All of them have potential to damage workplace camaraderie.
- The bullying allegations are unfounded or have no substance.
- There were instances of workplace bullying and minor disciplinary action is needed.
- There were instances of workplace bullying and major disciplinary action is needed.
Do you have a workplace bullying policy set out in your employee handbook or employment agreement? At every step of the way, from the complaint being laid, to carrying out disciplinary action, if you don’t follow proper policy and procedure you could open yourself up to a personal grievance from the victim, the accused, or even both of them.
The best employment advice for employers we can give is to seek legal advice early before taking any action. Our team of employment lawyers can guide you on the best path forward to protect both you and your business while ensuring a fair outcome for everyone involved.
Looking after New Zealand employers
It takes courage to run a business in New Zealand and take on the responsibility of looking after employees. There’s already enough for you to stay on top of, like doing your job, managing payroll and monitoring updates within your industry. You can’t be expected to stay updated with changes to employment law as well.
The friendly team of Christchurch employment lawyers at Lawhub can help you navigate your way through, and provide you with the best guidance to help you run your business.
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Employment and health and safety laws still apply at every COVID-19 alert level.
Employers cannot reduce their employees’ legal minimum employment rights, this includes:
• the minimum wage,
• annual and sick leave, and
• having a written employment agreement.
Both parties must always act in good faith. This includes always being open, honest, and communicative with each other.
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