Added: 18 / 07 / 2017

Costly Claims from Gross Error and "Gut Feel" Redundancy

A recent Employment Court judgment has provided guidance for employers in relation to bonus payments and redundancy processes. 

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Added: 10 / 05 / 2017

Sanctity of Settlement Agreements Upheld

Settlement agreements made under s 149 of the Employment Relations Act 2000 are important mechanisms for dispute resolution. Often they provide for the termination of employment in return for monetary compensation and other obligations or benefits. 

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Added: 11 / 05 / 2017

Changes to NZ Immigration Requirements

The Government has announced a number of propsed changes to Immigration Policy, including changes to the remuneration requirements to obtain certain visas, and a special pathway to residence for certain visa holders in the South Island. 

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Added: 10 / 05 / 2017

Managing an Employee Charged with a Criminal Offence

A recent Employment Court case highlights a number of issues that can arise for an employer when an employee is charded with a criminal offence. 

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Added: 10 / 05 / 2017

When Payment Sought from Employees are Unlawful Premiums

A recent decision of the full Employment Court has provided useful guidance on what constitutes a premium. 

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Added: 10 / 05 / 2017

Toughening Up on Employment Penalties

In April 2016, the Employment Standards Legislation Bill was passed into law. Among other things, this Bill toughened penalties on employers who breach minimum employment standards. Now the most serious breaches will be heard in the Employment Court. 

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Added: 16 / 11 / 2016

Employers beware: covert recordings

In a recent decision, the Employment Relations Authority has confirmed that covert recordings, which relate to conversations between other employees to which the person recording was not even a party, may be relied upon in Authority investigations. 

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Added: 16 / 11 / 2016

When settlement agreements are on shaky ground

Settlements between employers and employees to resolve employment relatoinship problems are common and the case law regarding the documentation of settlement agreements is complex. 

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Added: 16 / 11 / 2016

Name Suppression and Employment Investigations

An employee is charged with and convicted of criminal offending but the details of what happened and the name of the employee are supressed. Can an employer launch an employment investigation to establish whether these criminal actions affected the employee's ability to perform his or her job? 

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Added: 26 / 05 / 2016

Employment Update - Autumn 2016

A brief update on employment issues, news, recent case law and announcements.

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Added: 16 / 11 / 2016

Prohibition on Unlawful Preferences

Under the Employment Relations Act 2000, preference in obtaining or retaining employment, or preference in relation to terms and conditions of employment by reason of a person being or not being a member of a union, is prohibited. 

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Added: 16 / 11 / 2016

Directors' Duties and Liabilities under the Health and Safety at Work Act 2015

Under the new Health and Safety at Work Act, in force as of 4 April 2016, directors should be aware that they have new duties under the legislation and can be personally liable for breaches of these duties. 

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Added: 16 / 11 / 2016

The Trial Period in Review

A number of recent Employment Relations Authority cases suggest that employers are continuing to fall foul of legislation governing trial periods for new employees. 

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Added: 05 / 02 / 2016

Disciplinary Investigations involving Alleged Criminal Offending

Where an employee has been accused of serious misconduct which could amount to a criminal offence, it can be difficult for an employer to know how to proceed.

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Added: 05 / 02 / 2016

Bias In Employment Investigations

The Employment Relations Act 2000 requires employers to carry out employment investigations and processes in a procedurally fair and proper way. Ensuring compliance with legal requirements can sometimes be a challenging task for employers.

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Added: 18 / 08 / 2015

Employment Standards Bill

The Employment Standards Legislation Bill was introduced to Parliament on 13 August 2015. The Honourable Michael Woodhouse, Workplace Relations and Safety Minister, stated that the intention of the Bill is to “strengthen the enforcement of minimum employment standards”.

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Added: 18 / 08 / 2015

Employment Update - Winter 2015

A brief update on employment issues, news, recent case law and announcements.

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Added: 22 / 06 / 2015

Higher Standards for Justifying Dismissal

Industrial and employment relations practitioners are debating whether recent decisions of the Employment Court have raised the standard of proof and investigation standards that an employer is required to meet before reaching a decision to dismiss an employee.

What should be considered the current standard of proof following these recent judgments, and what practical advice is available on how disciplinary investigations should be carried out in light of these new decisions?

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Added: 11 / 02 / 2015

Employee Data Theft

Data theft is prevalent and it can expose employers to irreparable damage.  Information can be worth a significant amount of money and with the advent of new technologies, employees are able to extract millions of documents quickly and surreptitiously from a workplace.  What is an employer to do with this issue?  The article examines recent case law trends and provides a summary of the remedies available at all.

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Added: 05 / 05 / 2014

Employment Law - Legislative Change on the Horizon

The Employment Relations Act 2000 (the Act) is the principal statute governing employment relationships in New Zealand. Enacted in 2000 by a newly elected Labour Government, it repealed the Employment Contracts Act 1991. The Act was intended to provide a far more favourable employment landscape for employees, unions and collective bargaining in New Zealand...

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Added: 05 / 02 / 2016

Setting the Boundaries for "Without Prejudice" Conversations

“Without prejudice” conversations are often used in an attempt to settle employment disputes. Under certain circumstances without prejudice conversations are privileged and treated as confidential.

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Added: 22 / 11 / 2013

Keeping it casual – Recent Judicial Guidance on casual employment

“Casual employment” is a concept which is often misunderstood by employers and employees alike. Broadly speaking, casual employment is undertaken when an employee is employed to work on an “as and when required” basis by an employer. The work is typically for a specific purpose over a short period of time. When the work is completed, the employment ends and there is no expectation by either party of ongoing or regular employment in the future.


Casual employment is often attractive to employers because it provides them with a high degree of flexibility to meet changing labour demands without any ongoing employer obligations. Casual employment may be attractive to employees who are able to demand higher rates of pay for the provision of their services on a casual or irregular basis. Casual employment may also be attractive to employees who seek autonomy over the work they are to perform.


Casual employment can, however, be open to abuse by employers. Some employers attempt to use a casual employment relationship to avoid their obligations to an employee. Casual employment relationships are fertile grounds for employee personal grievance claims. Casual employees often raise grievances claiming that the true nature of their employment is, or was, permanent as opposed to casual.


The recent Employment Court case of Baker v St John Central Regional Trust Board [2013] NZEmpC 34 considers whether a casual employment relationship remained casual as it evolved over time and the impact of the employer’s roster on the nature of the casual employment relationship...

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Added: 22 / 11 / 2013

Health and Safety interviews – Court of Appeal confirms inspector powers

In 2012, the High Court considered the scope of health and safety inspectors’ powers. It concluded in Bull v Utumapu (2011) 9 NZELC 93,897 that the manner in which inspectors had been conducting interviews during investigations into potential breaches of the Health and Safety in Employment Act 1992 (HSEA) was unlawful.


Section 31(1)(f) of the HSEA empowers inspectors, employed by what was the Department of Labour (now part of the Ministry of Business, Innovation and Employment (MBIE)), to enter any place of work and require an employer (or any other person that controls the place of work) to provide statements in any form and manner that the MBIE inspector has specified.

Prior to the High Court’s decision, MBIE inspectors had conducted interviews with employers or persons controlling a place of work without first providing information such as the purpose of the interview. The High Court held that this was an infringement on the right to silence and the approach to interviews taken by inspectors was unlawful. The Court imposed certain pre-conditions on inspectors conducting interviews.


The Court of Appeal in Utumapu v Bull [2013] NZCA 175 overturned the High Court’s judgment. It held that the HSEA was unequivocal and clear in relation to an inspector’s interviewing powers and the interviewing practice conducted by the MBIE was lawful...

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Added: 22 / 11 / 2013

Social Media and Employment

The continuing growth of technology has fundamentally changed the way people interact and has radically changed the workplace. The unfettered sharing of personal information, photos, opinion and activity to a worldwide audience through social media has created significant new challenges for employers as well as providing many benefits. When personal and professional lives intersect, the boundaries between the two can become blurred. The boundaries between the brands of a business and those who work for it can also become blurred... 

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Added: 05 / 05 / 2014

Recent Judicial Guidance on Restraint of Trade Provisions

Restraint of trade provisions are becoming an increasingly common feature of employment agreements so it is not surprising that litigation challenging the validity, duration and geographical scope of restraints of trade is also on the increase. In three recent cases, restraints of trade have been carefully examined by the Employment Court and Employment Relations Authority. These cases indicate some practical pointers for employers to consider when drafting and negotiating lawful restraints of trade in their employment agreements...

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Added: 06 / 06 / 2014

Misconduct Outside Work Hours

To what extent can employers hold employees accountable for their conduct during their personal time outside work? When is it appropriate for an employer to draw the line in scrutinising such conduct?

Conduct occurring outside the workplace can give rise to disciplinary action by an employer. The key is to identify whether there is a sufficient nexus between the employee’s conduct and their employment. This article examines several cases where employees have been disciplined for conduct outside work hours. It will also give some practical tips on the process for disciplining employees and the factors which make conduct outside work legitimately the basis for disciplinary action...

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Added: 15 / 07 / 2014

Employment Update - Winter 2014

A brief update on employment issues, news, recent case law and announcements.  

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Added: 11 / 02 / 2015

"Tea Break Bill" Finally Becomes Law

Following many misleading media headlines you would be forgiven if you beleived that the amendments herald the end of employee rest and meal breaks.  However, the changes introduced do not remove an employee's rights to take rest and meal breaks.  Rather they endaevour to balance the importance of the breaks with the need for the provision of these breaks to be practical and flexible for each workplace.

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Added: 22 / 11 / 2013

Confidentiality of mediation negotiations – How robust can you be

The mediation of employment disputes is an important feature of employment law practice in New Zealand. The Employment Relations Act 2000 (ERA) creates a regime under which parties to an employment dispute are, almost universally, directed to attend mediation before the Employment Relations Authority or the Court will hear and determine the matters between them. A high proportion of mediations result in an agreed outcome.


Mediation is a forum within which parties can engage in discussions that are statutorily privileged, without prejudice and confidential. Mediation is intended to be an informal process within which the parties can be frank with each other regarding their views on the ongoing viability of the employment relationship, if it still exists, or seek to settle all claims arising out of any allegation of unjustified dismissal. Given these factors, mediation can involve robust exchanges as to where the blame for a particular problem lies and how the matter would play out in the Authority.


In George v Auckland Council [2013] NZEmpC 76, the Court recently had the opportunity to make findings in relation to a particularly robust mediation in which an employee felt she had been threatened by her former employer’s solicitor. The judgment provides guidance on the bounds within which negotiation at mediation may take place and the permissibility of comments that amount to advising the other side of potential further litigation, should the matter not resolve at mediation.


The particular issue dealt with in George was what actions in the course of mediation will justify a departure from the confidentiality obligations created by s 148 of the ERA. In other words, the case deals with the situations where the content of a mediation may be admissible in Court...

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Added: 22 / 11 / 2013

Avoiding Pitfalls in Recruitment Processes

There are a myriad of pre-employment checks and interview questions that employers may wish to use to find the right candidate for the position they want filled. However, it is important that employers understand their legal obligations and the legal limits that apply to recruitment processes.

To start, employers should be guided by the Privacy Act 2003 (Privacy Act) which sets out various information privacy principles.

The Privacy Act requires personal information to only be collected for a lawful purpose that is connected with a function or activity of the agency and that the collection is limited to information necessary for that purpose. In the recruitment context, this means that employers must only collect information necessary for determining an applicant’s suitability for employment. The agency must collect such information directly from the individual concerned (unless specified circumstances exist). In addition, agencies are prohibited from collecting information by “unlawful means” or by means that are “unfair” or “intrude to an unreasonable extent” upon the individual’s personal affairs.

Employers must also ensure that advertising, selection and hiring decisions are made fairly and not on unlawful discriminatory grounds.

The Human Rights Act 1993 (Human Rights Act) prohibits discrimination on the grounds of sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status and sexual orientation.

The material below is intended to provide employers with broad guidelines about how best to avoid pitfalls that can arise in the course of recruiting employees and to assist employers in complying with the Privacy Act and with any discrimination issues that might arise under the Human Rights Act...

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Added: 22 / 11 / 2013

Pre-employment Work Trials – Use at Own Risk

The Employment Court (Court) has recently, in the decision of The Salad Bowl Ltd v Amberleigh Howe- Thornley1 , scrutinised the practice of using pre-employment work trial periods.

A pre-employment work trial period is where an employer trials a potential employee’s skills prior to offering employment, unlike a “90-day trial period” under the Employment Relations Act 2000 (ERA) where the employee is employed during the trial period and the employment may be terminated pursuant to s 67A of the ERA.

The following case summary highlights some of the pitfalls in using pre-employment work trial periods as well as the lessons that employers can learn in terms of how best to approach gauging applicants’ suitability for the job...

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Added: 22 / 11 / 2013

Caregivers Score Significant Victory

The full bench of the Employment Court has recently issued an important judgment (Service and Food Workers Union Nga Ringa Tota Inc v Terranova Homes and Care Ltd [2013] NZEmpC 157) concerning the interpretation of the Equal Pay Act 1972 (the Act).

Despite being on the statute book for more than 40 years, the Act’s recent impact on wage rates and bargaining has been limited. The outcome of this case signals that this could be about to change with the prospect that, if the Court finds that there has been discrimination against female employees because of their gender, higher wage rates could be imposed by the Employment Court under the Act. The possibility of the Court setting a rate of pay for employees would, to a limited extent, be a return to the days when the Arbitration Court could and did set pay rates.

The matter has been appealed but the application for leave to appeal has yet to be heard...

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Added: 05 / 05 / 2014

The True Cost

Litigation is an expensive exercise, especially for the loser, because as well as losing the case the loser will generally be ordered to pay costs to the winner. As well as the financial award that a court may make, the cost of legal representation and the implications of an unfavourable judgment, costs are a worrying concern for those bringing or defending proceedings in the Employment Relations Authority or Employment Court. Costs orders are at the discretion of the Judge or Authority member. Each jurisdiction takes a different approach...

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