As a general rule, contractual terms cannot be varied without the consent of both of the contracting parties. However, an employer has a right to manage his or her business. The line between the employer’s right to manage, which does not require the consent of an employee, and a variation of contract, which does require the consent of an employee, can be hard to draw. An absence of protest amounts to acceptance of an alteration, and acceptance of a change may vary a contract even if the acceptance was unwillingly given.

Question: If an employer requests that an employee stay at home, or go home, because he or she is unwell or unfit for work, is this time off deemed to be sick leave and therefore able to be deducted from the employee’s entitlement or is the employee to be treated as having been suspended from work?

Misconduct outside work may provide justification for the dismissal of an employee if the misconduct has the potential to damage the employer’s business in some way. The conduct may be incompatible with the employee’s duties at work or it may undermine the trust and confidence that is necessary between employer and employee (Smith v The Christchurch Press Company Limited (2001) 6 NZELC 96,162; [2000] 1 ERNZ 624 (CA)).

An important decision has recently been made by the Employment Court in terms of redundancy law.  Last month the Employment Court ruled that it can scrutinise an employer’s decision to make an employee redundant to ascertain whether there were sufficient business reasons for the redundancy.

Just a reminder that ANZAC Day is tomorrow and there are trading restrictions until 1pm. 

The Bill providing for public holidays on Mondays when Waitangi Day or ANZAC Day falls on a Saturday or Sunday —the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Bill the was passed on 17 April 2013. (It awaits assent.)

With the recent increase in the minimum rate of KiwiSaver contributions rising to 3% for both employees and employers, it is timely to examine the implications of KiwiSaver from both a financial and legal perspective.

Blakely v ACM New Zealand Ltd [2013] NZERA Christchurch 9 provides a textbook example of how not to initiate a “without prejudice” discussion about termination of employment.

The first ground for her application was that, being a criminal offence, the alleged blackmail could not form part of the “purposes of mediation” referred to in section 148 of the Employment Relations Act 2000 and therefore fell outside the statutory confidentiality granted by that section. As an alternative, she asserted that the alleged blackmail fell within the exception considered, but not determined, by the Court of Appeal in Just Hotel Ltd v Jesudhass (2008) 8 NZELC 99,137. The Court there had opened the possibility of “evidence of serious criminal conduct” during a mediation being admissible, as a public policy exception.

In accordance with Section 69OI(1) of the Employment Relations Act 2000 (the “Act”), an employee protection provision means a provision—