Once Labour Day has been [yes, believe it or not it’s this coming Monday], the next public holidays are at Christmas and New Year.

In the next few weeks, my colleague, Tasneem Begum, and I will be offering a free webinar for those employers who want a bit more information around those tricky calculations for leave at this time of the year. We will also be able to answer the questions you have and the challenges you face with leave during the Christmas/New Year period.

You are not alone with the questions you have – Questions we are often asked at this time of the year are about employing staff to cover the busy Christmas period. The key is to make sure you have the right employment agreement that correct covers this position. If you are paying holiday pay as a P.A.Y.G rate, ensure this is agreed, an identifiable component on pay slips, and that your wage, time and holiday records show the holiday pay as a separate component.

Closedowns – Closedowns usually happen at this time of the year and employers will now need to be thinking about giving employees 14 days’ notice of the closedown and the requirement for them to take their annual leave if they have an entitlement. The employer will also need to consider those employees who don’t have any physical entitlement to annual leave, because the employee has not been employed for 12 months. The employer will need to discuss paying these employees their accrued holiday pay and whether their anniversary date moves to the date of the closedown.

Public holidays are always tricky at this time of year. Workplaces that do not closedown are often short staffed because employees want their holidays over summer and when the children are on school holidays.

For these workplaces, there are often gaps in rosters that need to be filled and often employers will ask existing employees if they would like those shifts. This gives certainty to the employer that they have the staff to undertake the work, and an understanding to the employee that they will work a shift that they would not normally work.

Unfortunately, sometimes employees become unwell, or suffer a bereavement, and are unable to attend work. Usually this is simple and does not impact on the calculation for the day or how it is recorded in the leave records as the day is treated as a sick or bereavement day…

But this is not so on a public holiday!!!

The Holidays Act 2003 sets out that when this occurs the day is to be treated as an unworked public holiday rather than as sick leave or bereavement leave. This means that the employee will get a paid day off as an unworked public holiday, based on the hours they would have worked if they were not sick, and it does not matter if they have no sick leave entitlement available to them.

If an employee is scheduled to work on a public holiday and works for an hour but then goes home sick, this section would not apply, as this only applies when the employee has not worked on the day.  The employee will be entitled to time and a half for time worked and an alternative holiday (if the day was an otherwise working day for them). If the employee has sick leave owing, they would be able to use that for the remainder of the day – but that would be paid at normal rates – not time and a half.

You will have often heard the phrase an “otherwise working day” in relation to an employee’s entitlement to public holiday pay and leave. In the event that an employee does not usually work on a day that a public holiday falls, but agrees to cover a person’s shift, and then happens to be sick on the day, then only for the purposes as set out above, the day would be classed as an otherwise working day.

Payment for Public Holidays – worked/unworked. This is an area that can confuse many employers as things like relevant daily pay, average daily pay, time and a half, and alternative holidays can come into play. It is important to know which calculations to use and when – which we will cover in our webinar.

For special situations about being on call over the Christmas period, transferrable public holidays, and what to do when an employee is sick or bereaved during their annual leave and on a public holiday, please attend our webinar to find out what to do and how to do it correctly.

By Lynn Booker, Senior Associate

I have had one of those weeks where I have been in full day mediations virtually every day out of Auckland.

What hit me at these mediations is the despair that people find themselves in by the time they arrive at my door. With varying degrees, all of these mediations had people in deep emotional turmoil. Anguish, frustration, anger and deep sadness, to the point where I had to pause to ensure the people were in the right space to make good decisions for themselves.

Workplace conflict can cause harm.

Coming back to Auckland I was sitting at the airport and I picked up one of those “you’ve got nothing else to do so just read me” free magazines. Full of advertisements of who to vote for in the local body elections, why I can’t survive without a bamboo pillow and a not so gentle reminder that I can get twice the house at half the price if I move out of Auckland.

What I did read though was that Mental Health Awareness Week runs from 26 September to 2 October 2022.

It started me thinking about what we can all do to promote the idea of mental wellbeing at work. Yes, I know there is legislation that has been designed to facilitate mental wellbeing in the workplace, but how can we all encourage active conversations at the coal face to ensure that employees and employers do not spiral downwards when conflict arises.

In all the mediations this week I was told the stress and strain that people were under did not happen overnight. These extreme feelings and emotions were a result of not talking to one another.

The theme of Mental Health Awareness Week is Reconnect, with the people and places that lift you up, hei pikinga waiora. Employers need to promote an openness about mental wellness and foster a workplace culture that supports conversations as well as provides a safe space to connect.

Mental Health and Wellbeing is very important at work and small gestures to open the door for conversations to take place can make a big difference for mental wellbeing for all parties in the workplace.

At Three60 we can offer the tools to help employers take the first step needed to tackle conflict or address workplace culture, get in touch today if you need assistance.

Written by Lynn Booker, Senior Associate

While we are conscious of the impact that inflation is having on wage and salary conversations, there are four other levers that have been, and are being, used to bring about fundamental change and significant uplift to pay in New Zealand.  The Government is using these levers to drive increases in pay at various levels in ways that we may not be conscious of. However, when brought together as a single thread, they are having a big impact.

The first and most obvious direct lever is the Adult Minimum Wage (AMW). The Labour Government has used this lever to deliver a 34.6% increase in the AMW from prior 1 April 2018, with a current AMW of $21.20 (as at 1 April 2022). The impact of this is to create compression on pay rate margins. Workers who had recognition of skill, knowledge, or responsibility have been pushing for the margin relativity to be restored. If their current employer does not deliver, workers are instead moving to new employment where they are being recognised.

The second lever is a Central Government mandate to require application of the Living Wage for directly employed workers and workers employed by contractors. This mandate is also being driven through local Government and their contractors.  The Living Wage has increased by 17% since 2018, currently at $23.65 effective from 1 September 2022, and has been led and defined by the Lower Hutt Family Centre Social Policy Research Unit.  Unions have picked up the Living Wage movement as a campaign and are driving an accreditation system.  The Research Unit is currently undertaking a re-evaluation of the Living Wage. We anticipate there will be a significant increase in 2023.

The third lever is Immigration, which is being used in various ways.  The closure of the Borders due to COVID was an understandable response, but it is has taken so long for the borders to open that there are constraints on labour supply, including the absence of international students who delivered part-time work capacity alongside their study. There are also limitations in the ability of Immigration to process VISA applications.  The portals used are simply not user friendly and it appears outdated methodologies continue to be used.  We are just too slow, particularly in comparison with other countries like Australia and Canada, with whom we are competing to recruit and retain skills and knowledge.  So, we have a squeezed labour supply which naturally places pressure on pay rates as employers compete for those limited supply of skills. We also have Government determining what level of pay must be paid for migrant workers depending on their work sectors and skill levels.  Accredited employers, with some pay threshold exceptions, must pay the median wage of $27.76 per hour.  New Zealand has direct Government intervention in setting pay rates because workers who are already residents or citizens will reasonably demand the same pay levels as migrants.

The fourth lever is gender-based Pay Equity, which has predominantly benefited State Sector and State funded private sector workers.  So far, the benefits have been siloed with Government not funding those private sector employers who, as a result, are losing their workers to employers that are being funded.  The private Care Sector is an example, and this is before the full application of the Te Whatu Ora (Health NZ) Nurses MECA settlement.  Aged Care, Home Care, and Primary Health Care are struggling to recruit and retain scarce skills.

New Zealand has experienced a long period where relativities were pretty much left to the market to determine the hierarchy of pay for skills. This had gradually been in play since the 1970s but brought to head by the arrival of the Employment Contracts Act in 1991. Those groups without the power to keep up with or get relativity-based recognition, missed out.  This includes gender-based occupations e.g. Care and Support Workers. This also includes those occupations where contract tender processes drove low pay, e.g. Bus Drivers.

Relativity bargaining, whether individual or collective, is here and is the “name of the game”.  It is my view that New Zealand, like other countries, is rebalancing pay. This is a deliberate, but softly spoken, strategic imperative from the current Government and strongly supported by the CTU, PSA, NZ Nurses Organisation, the Teacher Unions (PPTA and NZEI) in the State Sector and E tū, and FIRST Union in the private sector.  Expect this strategy to continue and be used as proof of delivery for workers to support continuity of the current Government at the next election.

Note – watch for conversation on a Cost of Living Adjustment of 7.5% for State sector and State funded workers!  What will that do to private sector collective and individual employee bargaining?

By Paul Diver, Director

To mediate or not to mediate – that is the question. While Hamlet may have endlessly agonised over his dire choices with absolutely no chance of a happy ending, it is not so with mediation.

In this article, Senior Associate Lynn Booker reflects on the realities of mediation, and why taking action to resolve conflict is best.

Mediation as an opportunity

Change the name, and the thinking around the word mediation. Let’s start by calling it “an opportunity”.

That’s really what mediation is; an opportunity for parties in conflict to come together and sort out their problem(s). It doesn’t have to be the only option, but it should be considered as a first step.

Mediation provides the parties in conflict with the chance to have an honest and open, and usually difficult, conversation. To speak and to be heard; to listen and understand and explore options for resolution. Mediation is also the only process that provides the people involved in the conflict with the opportunity to sort it out themselves, which usually affords the best outcome.

I have the best job in the world; I love being a mediator. Every day I see how the mediation process makes a positive difference in the lives of employees and employers.

Most people are not comfortable being in conflict and it’s not what they sign up for when they start on their first day of work. But conflict happens and people get grouchy with one another, take offence and get hurt by something, or a situation arises that potentially damages the relationship. This can end up with people being miserable at work and others in the workplace being dragged into take sides. Conflict causes damage if it is not addressed quickly.

I have heard, on more than one occasion, employees in mediation tell me that they were on medication, have anxiety, and are not sleeping because of workplace conflict. I have seen an employer’s despair with the negative impact conflict is having on their workplace, causing productivity to decline and putting the business in financial jeopardy. I have observed first-hand the negative impact conflict has on people’s lives.

The reality of mediation

I would love to tell you that every mediation is like a fairy-tale and everyone gets their wish. However, it is not like that. The reality is that mediation is tough, but the process is honest and the outcomes are ones that can endure and don’t simply unravel the next day.

Sometimes relationships can be repaired and they are even better than they had been, but sometimes the reality is that they simply cannot be fixed and are best to come to an end.

There are also those matters which should not be resolved in mediation. For example serious allegations of bullying, harassment and safety need to be investigated and the best course of action is not to jump straight in and sort things out, but rather to know what is going on.

Whatever the process, it is important for employers to take action and address the concerns, as they rarely improve without intervention.

So to employers reading this less than Shakespearean piece, remember, mediation is one option to address workplace problems and it works if you want the matter resolved. However, in those instances where you need to understand more about what is going on, consider an investigation process before deciding your next steps.

If you find yourself in need of a private mediation, or are unsure which process may be most appropriate, get in touch with one of our associates today.

“You’re fired!” – many would recall these words being repeatedly spat out by a former US president who had once tried his hand at hosting a TV reality show. In that show, the people who failed to perform to the expected levels were unceremoniously given their marching orders there and then. No process, no consideration of their viewpoint or feedback, no ifs or buts …. Just go!

But that was only a show, many would say. That does not really happen here in Aotearoa… or does it?

The fact is it does happen here, and quite often. Too many managers or business owners have used those famous last words – or others to that effect – in a similar manner, believing that they had every right to do so, only to soon find out the hard (and expensive) way that they were wrong or did not follow the correct process. Unfortunately, a manager’s belief that firing someone on the spot if they are caught with their hand in the money till is a legitimate option, is often triggered by the very wording that is regularly used in the termination clauses of many individual or collective employment agreements.

“Summary Dismissal” or even “Instant Dismissal” are, in my opinion, some of the worst misnomers in the NZ employment vocabulary. Here is just one example of this taken from a current employment agreement:

“Summary Dismissal – an employee may be dismissed immediately in the event of serious misconduct”

Let’s be honest – any manager who catches an employee stealing from the money box, or physically assaulting a fellow employee, will be rightly tempted to sack that employee on the spot and march them off the property if they read such a clause in their employment agreement. However, in doing so they will be opening themselves up to be on the losing end of a claim of unjustifiable dismissal. And we all know that this can be very costly (especially since 74% of cases brough about favour the employee (EMA)).

So, what exactly is “summary dismissal”? What does it really mean and when can it be used? I find the best way to explain this to clients is to get them to see it as being dismissal “without notice” as opposed to dismissal or termination “with notice”.

An employment agreement could be terminated either by the employee handing in their resignation or by the employer ending the relationship for just cause, e.g., after repeated warnings or for medical incapacity or by means of redundancy. In all such cases the employment agreement will also stipulate the amount of notice that either party would have to give to the other, that the relationship is about to end.

On the other hand, the employer would not be expected to give any notice if the employee is found to have committed an act of misconduct or negligence that is deemed to be so serious or so negligent that it undermines the trust and faith in the employment relationship.  

In all the above instances, however, prior to ending the employment relationship, the employer must first go through a due and proper process to ensure that the termination is both substantively justifiable and procedurally correct. The obligation for the employer to act fair and reasonably also remains. In brief, this process entails:

  1. Raising the allegations or concerns with the employee in writing.
  2. Asking for their feedback or point of view and asking them to attend a meeting to discuss this.
  3. Advising them of their right to be accompanied by a support person or a representative of their choice.
  4. Informing them what the outcome could include if the allegations or concerns are substantiated.
  5. Considering all of the information at hand, including the employee’s feedback, prior to taking a decision on any disciplinary outcome.
  6. Proposing a preliminary outcome to the employee and asking for feedback or comment prior to confirming the outcome.

Therefore, in the case of serious misconduct, the employer can only dismiss the employee summarily or without notice after this process is diligently followed and the alleged misconduct is found to be so serious that the employment relationship could not continue.

Many employers continue to fall foul of this and believe that if the misconduct is serious enough, they have the right to dismiss the employee ‘on the spot’, without the need for any process.

So, the next time this happens to you, step backwards and take a deep breath before proceeding any further. Better still – give us a call and we can help you to manage the situation correctly.

By John Camilleri, Senior Associate 

When an employee resigns in the heat of the moment, it can be difficult for an employer to judge whether there is merit in providing the employee a with “cooling off” period to reconsider their resignation, or to take the statement at face value.
Past case law has suggested that best practice is to actually allow for a period of reconsideration, however recent case law has introduced some new framework for employers to operate within when an employee resigns in these circumstances.

Below, we outline the change in approach to cooling off periods and explain what this means for employers moving forward when they encounter a heat of the moment resignation.

Previous authority has said that ‘cooling-off periods’ should be provided in situations where an employee uses words of resignation which form part of an emotional reaction or amount to an outburst of frustration, that these words are not meant to be taken literally and either it is obvious that this is so, or it would have become obvious upon inquiry made soberly once “the heat of the moment” had passed.

It was also stated that employers must act fair and reasonable in these circumstances. For example, if an employer knows the employee quite well and can take the situation as them acting in a way they have not seen them act before, then it would be reasonable to allow for a cooling down period and discuss with the employee what has occurred.

However, if we take a look at Mikes Transport Warehouse Ltd v Vermuelen, this demonstrates a different approach to these ‘heat of the moment’ resignations.

Mikes Transport Warehouse Ltd v Vermuelen

This matter started with the ERA finding that the employee was unjustifiably disadvantaged and unjustifiably dismissed. However, after the employer challenged the Authority’s determination, the Employment Court considered the claim of unjustifiable dismissal.

It was accepted by the Court that the employee had in fact resigned from their role and the claim for unjustified dismissal was dismissed.

The employee had attended a meeting where their progress, feedback received about his work, and the company’s expectations of him were discussed. According to the employer, the employee responded by saying he could not do the job and that he was resigning.

It was concluded that it was more likely than not that the employee told the employer he was struggling and therefore resigning.

The fact that the employee announced his resignation was found to not be determinative of the claim of unjustified dismissal.

This decision shifts away from considering whether an employer has provided a significant cooling-off period, and instead focuses simply on whether the employee resigned on an objective basis.

It was determined that while an employer’s decision to dismiss must be justified and what a fair and reasonable employer could do in all the circumstances, an employee does not need to justify their decision to resign; nor does the decision need to be demonstrably sensible or well thought through. The Court noted that resignations are a unilateral decision and do not involve the employer’s acceptance or disagreement. The question then is not what a fair and reasonable employer would do in response to a resignation given in the heat of a moment, in that there is no response.

We can see this decision applied in another recent case, Urban Décor Ltd v Yu, where two employee’s employment ended after a heated argument, during which they stated that they quit and then left the premises. This was taken by the employer as a resignation. The question in consideration was whether the employees resigned or were dismissed. The facts supported a finding that the employees objectively resigned, and that the Authority made an error of fact/law around cooling-off periods – again, being that an employer is not required to provide a cooling off period or to revisit the resignation, but rather objectively evaluating whether the resignation occurred.

Summary

From this most recent case, we can see a shift away from previous precedent that states there is an obligation to provide a cooling off period, stating that this should be provided in situations where an employee uses words of resignation which form part of an emotional reaction or an outburst of frustration.

As we see from the Mikes Transport Warehouse case, the focus has moved towards resignation being considered a unilateral decision of resignation by an employee and that an employer cannot accept nor deny this decision. Also, that an employer does not have an obligation to act fair and reasonable in these circumstances. This decision has been considered and applied in the Urban Décor case.

To translate these recent findings for employers – if an employee resigns in a manner that may be interpreted as “in the heat of the moment” (i.e. after conflict or as an uncharacteristic outburst) there should be consideration as to whether the statement was truly a “resignation” before deciding if a cooling-off period is appropriate.

If the employer considers that there is a risk that:

then best practice could be to allow for a cooling-off period and check in with the employee to understand the reasons for the “resignation” as well as potentially providing an opportunity for the employee to revoke their resignation.

This is suggested as the section 4 requirements of good faith still operate in the background in these situations, and employees who resign do have remedies such as a personal grievance claiming constructive dismissal available to them if they believe that their actions were not really a voluntary resignation.

When we think of a Private Investigator, it is easy for our minds to think of Magnum PI complete with Hawaiian shirt, bushy moustache and red corvette, or, depending on your age, perhaps even Scooby Doo! Not many people will think of external independent employment investigators, which many organisations have come to engage when complex allegations are raised or where the allegation is best handled in an independent manner.
Even less well known is  that independent workplace investigations must be conducted by a licenced private investigator.

In 2020, the Private Security Personnel Licensing Authority (“Licensing Authority”) confirmed in a decision that external workplace investigators are part of the legislated category of investigators that are required to hold a licence as a private investigator. The decision came after an employee made a complaint that the external investigator was not qualified or experienced enough to conduct an investigation into the allegation made about the employee. In that case, they decided not to prosecute the individual, noting that it was unintentional given the widespread misconception that employment investigators are not private investigators.

Two years later, we are still seeing employment investigations conducted by individuals and organisations who are not compliant with their legal requirements as they are not licensed private investigators . This year, we again saw a decision from the Licensing Authority after an investigator’s competency and qualifications were questioned due to not holding a licence as a private investigator. The Licensing Authority again confirmed that the investigator should have been licensed and warned that if it was to occur again, they would likely be prosecuted.

This is a timely reminder as we are seeing an increasing amount of organisations choosing to engage in external investigations. The Licensing Authority considers that it is now “best practice for employers to engage a specialist third party to undertake independent employment investigations”.

Not only is the unlicensed investigator putting themselves at risk of prosecution, the employer is also potentially at risk if they rely on the outcome of an investigation conducted by a unlicensed investigator in making a decision. The results of investigations are frequently relied upon to determine what the appropriate next steps when there have been serious allegations made against an employee. This could include whether or not to proceed to a disciplinary process. For this reason, it’s important the investigation has been conducted by someone with the appropriate skill, experience and is licensed as a private investigator to ensure the investigation is robust and can be relied upon.

Engaging a licensed investigator has many benefits for both parties, including:

At Three60 Consult, five of our team members hold private investigator licenses through the Licensing Authority. You are able to have an investigator whose skill-set and experience is best suited to the situation. We have a very experienced team with a diverse skill set which includes investigation into criminal misconduct, fraud and employment misconduct. You can read more about our investigators here: https://three60consult.co.nz/services/investigations/

By Kim James, Business Partner

In the workplace it is often the collective “we” — we as people, we as humans, we as employees — that represent the most challenging and precarious aspect of work.

Conflict in the workplace comes in all shapes and sizes whether it be between employer and employee, two employees, groups of employees, or with external stakeholders. All of these have the potential to negatively impact on businesses if they are not addressed and dealt with.

If conflict is left unaddressed, factions can form, productivity drops, absenteeism occurs, people leave and the general workplace culture can suffer. Employees can raise personal grievances and claims that the employer is not providing a healthy and safe workplace.

Managers are often the first line of defence for the employer and the employee. They will notice or hear about the conflict, usually before anyone else, and have the chance to address the problems before they escalate. Once aware there is a problem, there is only one thing worse than doing nothing – doing things wrong.

For employees to be able to thrive and management to effectively mitigate any issues arising in the workplace, soft skills are essential.

What are soft skills?

Soft skills are personal attributes that enable one to interact effectively with people. They support situational awareness. Examples of soft skills are:

Managers need to have the skills to not only pick up on signs of conflict, but also mitigate it or prevent it from becoming detrimental.

Why are these important?

We see many personal grievances and claims where the ERA and Court have determined that the employer is unsuccessful in defending the claim because of the actions of the manager at the outset have disadvantaged an employee or they undertook a process that was procedurally flawed. It is safe to assume that determinations and mistakes such as these usually happen because the managers lack the necessary soft skills.

Soft skills are critical when dealing with people in stressful or difficult situations and mitigating conflicts. Having empathy and high emotional intelligence can enable people to defuse challenging situations and assist with building and supporting relationships within the workplace (both your own and others) and relating to others.

One of our mediators, Lynn Booker, has observed many times over the years, the benefits of managers having the opportunity to develop their soft skills in managing conflict.

Lynn mused that often employers expect their managers and team leaders to manage a team and this often focuses on output, whether it be a product or a service. The employer sometime forgets that its employees are their greatest asset and as such, need to be supported and valued to ensure they are motivated to do their best for the employer. This support and motivation can be achieved through applying soft skills.

Tips for managers

Managers do not have to be employment lawyers or conflict resolution experts, but they should be familiar with what they should do and should not do. A few tips when dealing with workplace issues:

  1. When conflict or issues come to your attention, the first step is speaking to the parties individually to understand what has happened. If you are not sure about this process [e.g. offering the person to have a support person, being clear about the reason for the meeting etc.] seek advice, as these kinds of meetings where you are asking questions and gathering information may form part of a formal process.
  2. Managers should remember that when they have these conversations, they are, for all intents and purposes, the employer. You must act in good faith and cannot ambush someone asking questions.
  3. Before any meeting, be clear about why you want to talk to the person. E.g. I heard you were unhappy about XYZ, do you want to talk about it?
  4. When you do meet, ask open ended questions. E.g. Can you help me to understand a bit more about this? Can you tell me what happened then?
  5. At the end of the meeting, ask questions like “how do you see this being resolved?” “what can we do to sort this out?”
  6. At no stage in these preliminary meetings is the manager forming a view. It is about saying – I want to know what’s going on and explore how we can sort it out.

If matters are addressed at the earliest stage, parties have the best chance of resolution. When managers do not address conflict or “take sides” or “jump to conclusions” this often prevents real resolution and also develops a workplace culture where conflict is not addressed in a good faith process. If managers offer their view, it also has a risk of the perception that the employer has predetermined the outcome of what occurred.

In the reverse, if managers do address conflict and are trained and confident to have difficult conversations, this builds confidence within the workforce that conflict will be addressed and not left to escalate.

To summarise

Four key points for managers to remember are:

Having good people skills means employees will be more likely to relate to you, leading to stronger relationships being created and trust being enhanced in the workplace. It will be effective long-term to invest in developing these skills in your employees.

If you or your employees need conflict coaching or assistance running difficult processes, get in touch with one of our associates today.

By Kayla Neems & Lynn Booker

Conflict – it is a natural part of working and organisational life, and as Karl Marx and many other conflict theorists suggest, it is inevitable. While conflict does not always result in destruction, when it does it moves from task-related to person-related based conflict. As the conflict escalation model suggests, when conflict is not addressed or intervened from the beginning, it can lead to escalation, spiral and grow in severity overtime.

So what do we know about the conflict escalation model?

The model suggests that conflict emerges in a sequential manner. This usually starts with a trigger. When left unresolved, it moves onto further issues being created. Parties then start to form alliances, leading to distortion of communication and finally, moving to parties taking extreme positions and focusing on hurting each other.

Over time, the conflict moves away from the initial issues and becomes more emotional and interpersonal. This spiral or escalation has 2 main zones – one where the conflict has not yet emerged into public view, and one where the conflict becomes public and direct.

Our team have found that often in investigations, by the time a complaint is brought to us, the relationship between parties involved has been eroded and the events leading up to this break down have been left to spiral out of control for too long.

What this means for the Employer is that it is more difficult to repair the relationship and, as it emerges into the public eye, the conflict will start to affect the culture of the business and impact on other employees. This often leads to employees ‘banking up’ their concerns or complaints leading up to a formal complaint being made. As the investigations would then involve multiple allegations for our Investigators to make findings on, it means there are more recommendations and/or actions the Employer needs to initiate after the investigation.

Managing conflict is never easy, however if the conflict escalation model tells us anything, it is that the best place to address problems is closest to the origin – the trigger.

Early intervention at the trigger affords the best opportunity to de-escalate conflict successfully and create a win-win situation for both parties. It also saves time, money, and wellbeing. For employers, early invention may look like a facilitated conversation between individuals, mediation, continuous check-ins etc.

However, as much as employers should be encouraged to manage conflicts and utilise soft skills, we know how difficult this can be knowing where to start and developing these skills. At Three60 Consult we can offer support to Employers through conflict coaching and providing best practice advice around processes and outcomes.

If the issue cannot be resolved at a lower level first or perhaps if a formal complaint/allegation has been made before low level action could be taken, employers should not hesitate to consider investigation. This is because although employers may feel that they can’t start an investigation until the issue reaches a certain level of breakdown, our investigators have seen that it is better to intercept and start the process early for the sake of preserving relationships and culture.

It is important to remember that being respectful, fair, transparent, neutral, unbiased, and empathetic throughout all processes both informal and formal is crucial to the outcome. However, if it is a formal process that needs to be taken, our investigators are highly experienced and can provide assistance and confidence to employers who need to undergo an investigation process.

Conflict in the workplace is never ideal, no matter the type or size. Having in place a strategy or understanding of how to approach conflict as it arises is critical for any employer and business.

If you need assistance with any of our conflict services, get in touch with one of our associates today.

Minimum entitlements are a long-established feature of the employment landscape in New Zealand and cannot be unknown to employers. Although calculating and paying bereavement, alternative days, public holidays and sick leave sounds simple enough, it is actually quite easy to get wrong – as has been demonstrated in multiple Authority and Employment Court cases. Below are a few recent cases of note:

Last year the ERA ordered a Dunedin based bakery owner to pay $299k in arrears and penalties of minimum wage, annual and public holiday entitlements and sick leave.

A Labour Inspector investigation found that the employer failed to pay employees their correct wages, holiday and sick leave pay, in breach of the provisions of the Employment Relations Act 2000, the Minimum Wage Act 1983, and the Holidays Act 2003.

In this case, the workers were paid wages for 40 hours per week when, in reality, they were working around 80 hours per week. As a consequence, the total remuneration paid to the employees equated to less than the minimum wage rate when worked out across the total hours. There were also no timesheets or records kept, and one employee had been asked to provide ‘false information’ to the Labour Inspector.

Similarly, in a case, A Labour Inspector v Olive & Jenn Co Limited, the employer failed to properly pay annual leave, time and a half, provide alternative holidays, properly pay unworked public holidays, and maintain holiday and leave & wage record for two employees.

An improvement notice was served, and when a follow up investigation was commenced years later, a majority of these payments had still not been paid correctly or accurately recorded. The employer was ordered to pay $40,000 and the owners personally were each to pay $20,000 to MBIE.

If there is one message that cases such as these send, it is that businesses who exploit their workers and fail to uphold their obligations will be handed severe penalties by the employment jurisdiction.

While these two cases are of particular note due to the fines awarded, it is important to note that it’s not just those types of employers who face penalties. Any employer who fails to keep accurate records and calculations could face significant penalties, whether there is good faith intended or not.

The Holidays Act is due to change and Labour Inspectors are hitting hard, so now is a great time to get ahead and make sure all of your record keeping is accurate and up to date.

We have a team of experts in minimum entitlements legislation who will undertake a comprehensive comparison between what you do in practice and the requirements of legislation, caselaw, contractual entitlements provided for in the employment agreement and the agreed hours of work and the actual hours of work.

If this is something you want to get on top of, be sure to get in touch with one of our associates today.