Legal Latest - January 2016
Legal Latest
The legal cases settled over the last few months have given a lot of food for thought. This month will be a long summary – if you want more detail in an area please ask and I will find the relevant case detail for you.
- Fines for breach of wage records etc – non-compliance with wage records has attracted a $4,000 fine – and when combined with minimum wages breach, a fine of some $25,000. MBIE have indicated they will be moving to obtain fines of up to $20,000 for companies in breach.
- Casual employment – the Courts have reminded us that there are 6 criteria that are used to determine if there is a casual nature of employment – number of hours each week; whether it is allocated in advance by roster; regularity of pattern of work; expectation of continuity of employment; requirement of notice of absence or leave; consistency of start/finish times. The more of these that apply the less likely it is casual.
- Dismissals – if there are substantive grounds for dismissal even though the process is wrong, the Courts are not awarding lost wages. But otherwise, you can be up for 3 months lost wages if the dismissal is unjust. And dismissal for medical reasons without due process recently cost a company $23,000.
- Settlement Agreements – in order to avoid court hopefully some settlement can be reached – getting these signed off by a mediator (possible even without having a meeting with a mediator) means the employee cannot later claim they were under duress.
- Suspension – I know it may seem a waste of time, but before you suspend anyone while you investigate a serious misconduct allegation you must give them opportunity to comment – no consultation seems to be giving rise to fines of some $4,000.
- Health and Safety – while we’re on the subject of fines: one company has incurred fines of $128,000 resulting from a death because (in essence) of inadequate forklift training and no documented system. Another has incurred $62,000 for a lost thumb just because they allowed a machine guard not to be used. And be aware the changes that take force from 1 April will increase the potential level of fines as well as make Directors and officers more liable.
- Immigration – You should be aware that visas for many trades people are now more difficult to obtain. A range of builder trades will now require 12 months experience in NZ to get a visa under the Canterbury Skills Shortage List – will still be easy for those renewing visas. Painters, Electricians and Quantity Surveyors have all come off the list and will now need evidence of a local labour market search.