More and more companies are mandating their workers return to the office after months or years of working remotely - and these moves are proving controversial.
It can be jarring to have to deal with a lengthy commute and all the additional costs that can come with it, but one expert has revealed how workers can address these changes.
Gareth Abdinor, Director of Abdinor Employment Law, joined the Afternoons team to explain further.
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Episode Transcript
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Speaker 1 (00:09):
You're listening to a podcast from newstalksed be follow this
and our wide range of podcasts now on iHeartRadio.
Speaker 2 (00:16):
Gareth abden Or. He is the founder and director of
abden Or Law. He is an employment, workplace and information
expert and is a great friend of the show and
it's a pleasure to welcome in for the first time
in twenty twenty five.
Speaker 1 (00:29):
Gareth.
Speaker 3 (00:30):
Good afternoon, Good afternoon. It's great to be here, guys.
Speaker 2 (00:34):
Well, great to chat. Has it been a busy start
to the year for you, Gareth, I understand there's quite
a few changes happening in employment law as the year progresses.
Speaker 3 (00:42):
Yeah, there's lots of changes, and I think with the
economy taking a bit of attention, people really want to
keep their jobs and there's a lot of restructuring going
on and lots of work, that's for sure.
Speaker 2 (00:57):
Absolutely absolutely. Now you know the drill. If you've got
a question for Gareth, O wait one hundred and eighty
ten eighty. If you've got any issues in your workplace,
he is the man to chat to. And indeed, if
you run the company or the boss and you've got
some issues with your workers, he's great to check to.
As well, Gareth, we've already got texts coming through, so
we'll kick into them pretty quick.
Speaker 3 (01:17):
Yeah sounds good.
Speaker 4 (01:18):
Hey, a question for you. My work was all remote
then I joined my current firm. When I joined my
current firm, they now want us back in the office
two of five days every week, and to make up
those office days even when we take leave. I would
like to request a change to my working arrangements to
the prior status quo as per Employment Relations Act two thousand,
(01:39):
Parts six AA flexible working, And don't think they can
point to any exemption as per six nine AAF the legislation.
Can they sanction me for asking for this variation?
Speaker 3 (01:52):
Eg?
Speaker 4 (01:53):
Refuse bonus payments, etc. Thanks?
Speaker 5 (01:56):
Boy?
Speaker 3 (01:57):
There's so much in that one, isn't there? I guess
summarizing a lot of businesses went fully remote during COVID,
and now they've seen that that comes with a whole
lot of downsides and there's a lot of pressure for
people to return to the office. You don't have to
(02:18):
be a genius to work out that if everybody's working
from home, it's so much more difficult to train junior staff.
Mental people include people on meetings and discussions and often
say you learn a lot through osmosis listening and what
the person next to you is saying on the phone.
So there's a lot of pressure for people to go
(02:39):
back to the office. Very difficult to answer the coolest
questions because it is so fact dependent. Now, if you
got the job and it's said that your work would
be remote, the employer would have to consult with you
and essentially do a restructure before they could force you
(02:59):
back to the office. You know, as I've said for
years and years on the show, that you need to
be very careful in such ways like this, because yes,
you may have legal options open to you, but do
you want to be the nail that sticks up because
you might get smacked down?
Speaker 2 (03:18):
Good analogy.
Speaker 3 (03:19):
Yeah, you know, if you're really difficult when times are tough,
you might be the first one out the door when
there's a restructure. So I think there's a fine line
to be walked here. Yes, definitely you can ask for
flexible working arrangements. Your employer has to consider that in
good faith, but they don't have to agree.
Speaker 4 (03:40):
Okay, we're talking to employment lawa of Gareth abdan Or
from Admoral Law. John, You've got a question for Gareth John.
Speaker 2 (03:52):
Yeah, Hello, Yeah, now you're on with Gareth. John, what's
your question.
Speaker 6 (03:58):
We've recently been taken over by another company. In it
the new company has taken us on your old terms
and individual agreements.
Speaker 3 (04:07):
Yep.
Speaker 6 (04:10):
This issue coming out is that based on a salary
for forty hours a week and any time anyhow overtime
work over and above it was taken off as pay
paid leave right. But in our individual agreement it says
that there'll be no overtime paid over and above forty hours.
Speaker 3 (04:34):
Yeah, and that's not not an unusual situation. John. You
may have an argument here that the arrangement with your
previous employer became part of your employment agreement. But I
think where there's a new employer, what's in the contract
is likely to be what's what they're going to stick to.
(04:58):
So you can give it a go. But I wouldn't
be I wouldn't be digging my heels in too much
on that one.
Speaker 2 (05:07):
Hopefully that John, Thanks very much for your phone call,
So just on there, Gareth. So, if you're part of
a company and it gets sold to a new buyer,
new owner, do your contracts still remain in place or
at that point do you start with new contracts.
Speaker 3 (05:23):
Yeah, it really depends on whether it's a sheer purchase
or a purchase of the assets of the business. What
normally happens is there's a new employment agreement with the
name of the new employer, and often there slight changes
to the terms of employment, so there might be changes
to benefits, and often there changes to things like this
(05:45):
the hours of work. You know, as I said before,
times are tight, and I think if you're on a
salary that kind of comes with the arrangement that sometimes
you're going to have to work over your forty hours.
Speaker 5 (05:59):
Yeah.
Speaker 2 (05:59):
Interesting. We're joined by Gareth Abden or Director of Abden
or Employment Law, taking your questions about any issues you're
having at work or if you run the company, any
issues that you've got with your employees. Plenty of techs
coming through Gareth yees.
Speaker 4 (06:14):
So here goes one. We went out with the new boss.
He paid for the first two rounds. Yes, he called
it a get to know me post work meeting that
we had to attend. After two we started paying for ourselves.
Things took off, a glass got broken. He comes back
(06:36):
over from his mates and tells us we all got
to go home. Saying, because he paid for the first beers,
he is responsible for us. We told him to If
off he's still angry, can your boss kick you out
of a pub? Aren't we in charge of our own
lives after we're off site. This seems a lot behind.
Speaker 2 (06:55):
That great text.
Speaker 3 (06:57):
Oh man, I don't even know where to start with
this one. I guess the first thing is, yeah, maybe
don't tell your boss to ef that it's career limiting.
Good advice. I think that's the advice of the day.
It's really tricky these days, and I don't think it
(07:18):
was a great idea for the boss to take people
out to a pub if there weren't clear expectations in
the beginning. These days, employees aren't treated like adults often,
and employers aren't allowed to do the sort of things
that they used to be allowed to do, And so
(07:40):
we see a lot of Christmas parties being canceled parties,
if you can call it that, with no alcohol. So
this situation is a recipe for disaster. I think these
employees should be quite lucky that they're not facing disciplinary action,
(08:02):
and I think everybody should just chalk it up to
a bad idea and try and forget about it.
Speaker 4 (08:07):
So if you're in a location so you've been out
with the boss though, and the party initially starts there,
and if the boss clearly goes it's over. Now those
few two bears and it sounds like he's over at
another table because he says he came over from his
other mates, so I'm not sure if he did this,
But he goes, that's over. That was the drink, that
was the get together we wanted to have. I'm not
(08:30):
paying for any more drinks. He goes over to another table.
His employees still his responsibility at that point, or has
he shut down the function even though they're both still
in the same establishment.
Speaker 3 (08:43):
Yeah, I think the risk is that there's a reasonably
high risk that if anything goes wrong, the venue will
blame it on the company, and the employees could claim
that it was still a work event. It started as
a work event. Alcohol was provided. You know, best practice
(09:03):
in a situation like this would be to say we're
going to go out, we're going to have a couple
of drinks, and then everybody leaves. Then if you go
to a different venue without your boss, I think everybody's
on much safer territory. But the fact that stayed in
the same pub. Yeah all round.
Speaker 2 (09:24):
Yeah, don't tell your boss to number one.
Speaker 4 (09:27):
I like it says we told the boss.
Speaker 3 (09:31):
It sounds like there was an insurrection.
Speaker 4 (09:35):
Siah. You've got a question for Gareth, right.
Speaker 1 (09:38):
Yeah.
Speaker 5 (09:39):
I work in sales and quite any specialty, and I
believe I've got quite an intense restraint of trade in
my contract so that they can stop me working for
a competitor for twelve months. How unenforceable is that in
New Zealand.
Speaker 3 (09:54):
Yeah, that's a fantastic question, Sarah. There's this idea out
there that restraints aren't enforceable and that's not correct. And
then there are some pretty owner restraints in employment agreements
that clearly go too far. So the test that the
(10:16):
court will look at is it reasonable and is it
necessary to protect a legitimate interest that your employer has.
If you're in a niche role and you've got relationships
with suppliers, relationships with customers, and it would take a
long time for them to protect those and you could
(10:38):
take advantage of them, potentially that restraint could be enforceable,
but it really comes down to the particular circumstances of
each case. Twelve months is definitely at the upper end
of what would be considered reasonable. Generally, three months is reasonable,
six months is starting to get up there, and twelve
(11:00):
months is at the extreme end. But there are cases
where twelve months has been found to be reasonable.
Speaker 2 (11:08):
Take care, thanks Sarah. Just on that twelve months, I mean,
would there is there sometimes a caveat or part of
that deal that they pay you out something so that
at least you can survive for that twelve months.
Speaker 3 (11:20):
And often those extended restraints only apply to people on
relatively good incomes. As I say, twelve months is quite extreme,
and that can't prevent you from working full stop. It
will just prevent you from working in a way that
(11:42):
would be unfairly competing with your previous employer.
Speaker 4 (11:46):
What can the previous employer do?
Speaker 3 (11:48):
Though they can file proceedings, they can seek an injunction,
so the court could actually issue an injunction preventing you
from from doing whatever it is that's in breach of
the restraint. Generally, these things are resolved before that point
because once it goes to court, everybody lose. Accept the lawyers.
Speaker 6 (12:11):
Yeah, yeah, interesting.
Speaker 3 (12:13):
You know, with a restraint like that, I think it's
a very good idea to get some legal advice, so
you know where you stand.
Speaker 2 (12:19):
Yeah, great stuff. Good afternoon. We're joined by Gareth Abdenor,
who is the founder and director of Abdenor Law. You
can check him out Abdenorlaw dot z. He's brilliant and
he's taken your questions. Josh, good afternoon.
Speaker 7 (12:32):
Yeah, hey guys, heye, Gareth. My question is I resigned
from a position late last year and what I did
after I left, I went to make contact with previous
managers that I worked under, and so from working with
(12:53):
them previously, I asked if it would be okay if
I use them for future for a future reference will work.
At that point they said, yeah, that's that's fine. When
I actually resigned, I had a new area manager come
in and that was one of the reasons why I
thought I'm out of here. I'm just I'm going and
(13:18):
this particular person who only just gained that position, this
person's actually gone to these people who I used to
work for, and it has asked them not to supply
any references.
Speaker 2 (13:32):
It's a big one. And sorry, Josh, we're almost running
out of time. But Gareth, can they do that?
Speaker 3 (13:38):
Yeah, they most probably can. An employer is under no
legal obligation to provide you with a reference. They do
need to confirm that you work there, but they don't
have to provide you with a reference. And a lot
of businesses have a policy not to provide references and
only to provide certificates of service. So yep, potentially they
(14:00):
could they could do this.
Speaker 2 (14:01):
Yeah, very good, Gareth, great to catch up again. I
thank you very much as always, and there's plenty of
texts and phone calls the get to next time you're on,
so we'll catch you in a month's time.
Speaker 3 (14:11):
Fantastic, Thanks guys, brilliant.
Speaker 2 (14:13):
That is Gareth Abdenor, founder and director of abden Or Law.
You can check them out Ebdenorlaw dot in z.
Speaker 3 (14:19):
And that is us for today.
Speaker 4 (14:20):
Yeah, give them a toast of key.
Speaker 1 (14:21):
We talk tomorrow for more from News Talk st B.
Listen live on air or online, and keep our shows
with you wherever you go with our podcasts on iHeartRadio.
You're listening to a podcast from newstalksed be follow this
and our wide range of podcasts now on iHeartRadio.
Speaker 2 (00:16):
Gareth abden Or. He is the founder and director of
abden Or Law. He is an employment, workplace and information
expert and is a great friend of the show and
it's a pleasure to welcome in for the first time
in twenty twenty five.
Speaker 1 (00:29):
Gareth.
Speaker 3 (00:30):
Good afternoon, Good afternoon. It's great to be here, guys.
Speaker 2 (00:34):
Well, great to chat. Has it been a busy start
to the year for you, Gareth, I understand there's quite
a few changes happening in employment law as the year progresses.
Speaker 3 (00:42):
Yeah, there's lots of changes, and I think with the
economy taking a bit of attention, people really want to
keep their jobs and there's a lot of restructuring going
on and lots of work, that's for sure.
Speaker 2 (00:57):
Absolutely absolutely. Now you know the drill. If you've got
a question for Gareth, O wait one hundred and eighty
ten eighty. If you've got any issues in your workplace,
he is the man to chat to. And indeed, if
you run the company or the boss and you've got
some issues with your workers, he's great to check to.
As well, Gareth, we've already got texts coming through, so
we'll kick into them pretty quick.
Speaker 3 (01:17):
Yeah sounds good.
Speaker 4 (01:18):
Hey, a question for you. My work was all remote
then I joined my current firm. When I joined my
current firm, they now want us back in the office
two of five days every week, and to make up
those office days even when we take leave. I would
like to request a change to my working arrangements to
the prior status quo as per Employment Relations Act two thousand,
(01:39):
Parts six AA flexible working, And don't think they can
point to any exemption as per six nine AAF the legislation.
Can they sanction me for asking for this variation?
Speaker 3 (01:52):
Eg?
Speaker 4 (01:53):
Refuse bonus payments, etc. Thanks?
Speaker 5 (01:56):
Boy?
Speaker 3 (01:57):
There's so much in that one, isn't there? I guess
summarizing a lot of businesses went fully remote during COVID,
and now they've seen that that comes with a whole
lot of downsides and there's a lot of pressure for
people to return to the office. You don't have to
(02:18):
be a genius to work out that if everybody's working
from home, it's so much more difficult to train junior staff.
Mental people include people on meetings and discussions and often
say you learn a lot through osmosis listening and what
the person next to you is saying on the phone.
So there's a lot of pressure for people to go
(02:39):
back to the office. Very difficult to answer the coolest
questions because it is so fact dependent. Now, if you
got the job and it's said that your work would
be remote, the employer would have to consult with you
and essentially do a restructure before they could force you
(02:59):
back to the office. You know, as I've said for
years and years on the show, that you need to
be very careful in such ways like this, because yes,
you may have legal options open to you, but do
you want to be the nail that sticks up because
you might get smacked down?
Speaker 2 (03:18):
Good analogy.
Speaker 3 (03:19):
Yeah, you know, if you're really difficult when times are tough,
you might be the first one out the door when
there's a restructure. So I think there's a fine line
to be walked here. Yes, definitely you can ask for
flexible working arrangements. Your employer has to consider that in
good faith, but they don't have to agree.
Speaker 4 (03:40):
Okay, we're talking to employment lawa of Gareth abdan Or
from Admoral Law. John, You've got a question for Gareth John.
Speaker 2 (03:52):
Yeah, Hello, Yeah, now you're on with Gareth. John, what's
your question.
Speaker 6 (03:58):
We've recently been taken over by another company. In it
the new company has taken us on your old terms
and individual agreements.
Speaker 3 (04:07):
Yep.
Speaker 6 (04:10):
This issue coming out is that based on a salary
for forty hours a week and any time anyhow overtime
work over and above it was taken off as pay
paid leave right. But in our individual agreement it says
that there'll be no overtime paid over and above forty hours.
Speaker 3 (04:34):
Yeah, and that's not not an unusual situation. John. You
may have an argument here that the arrangement with your
previous employer became part of your employment agreement. But I
think where there's a new employer, what's in the contract
is likely to be what's what they're going to stick to.
(04:58):
So you can give it a go. But I wouldn't
be I wouldn't be digging my heels in too much
on that one.
Speaker 2 (05:07):
Hopefully that John, Thanks very much for your phone call,
So just on there, Gareth. So, if you're part of
a company and it gets sold to a new buyer,
new owner, do your contracts still remain in place or
at that point do you start with new contracts.
Speaker 3 (05:23):
Yeah, it really depends on whether it's a sheer purchase
or a purchase of the assets of the business. What
normally happens is there's a new employment agreement with the
name of the new employer, and often there slight changes
to the terms of employment, so there might be changes
to benefits, and often there changes to things like this
(05:45):
the hours of work. You know, as I said before,
times are tight, and I think if you're on a
salary that kind of comes with the arrangement that sometimes
you're going to have to work over your forty hours.
Speaker 5 (05:59):
Yeah.
Speaker 2 (05:59):
Interesting. We're joined by Gareth Abden or Director of Abden
or Employment Law, taking your questions about any issues you're
having at work or if you run the company, any
issues that you've got with your employees. Plenty of techs
coming through Gareth yees.
Speaker 4 (06:14):
So here goes one. We went out with the new boss.
He paid for the first two rounds. Yes, he called
it a get to know me post work meeting that
we had to attend. After two we started paying for ourselves.
Things took off, a glass got broken. He comes back
(06:36):
over from his mates and tells us we all got
to go home. Saying, because he paid for the first beers,
he is responsible for us. We told him to If
off he's still angry, can your boss kick you out
of a pub? Aren't we in charge of our own
lives after we're off site. This seems a lot behind.
Speaker 2 (06:55):
That great text.
Speaker 3 (06:57):
Oh man, I don't even know where to start with
this one. I guess the first thing is, yeah, maybe
don't tell your boss to ef that it's career limiting.
Good advice. I think that's the advice of the day.
It's really tricky these days, and I don't think it
(07:18):
was a great idea for the boss to take people
out to a pub if there weren't clear expectations in
the beginning. These days, employees aren't treated like adults often,
and employers aren't allowed to do the sort of things
that they used to be allowed to do, And so
(07:40):
we see a lot of Christmas parties being canceled parties,
if you can call it that, with no alcohol. So
this situation is a recipe for disaster. I think these
employees should be quite lucky that they're not facing disciplinary action,
(08:02):
and I think everybody should just chalk it up to
a bad idea and try and forget about it.
Speaker 4 (08:07):
So if you're in a location so you've been out
with the boss though, and the party initially starts there,
and if the boss clearly goes it's over. Now those
few two bears and it sounds like he's over at
another table because he says he came over from his
other mates, so I'm not sure if he did this,
But he goes, that's over. That was the drink, that
was the get together we wanted to have. I'm not
(08:30):
paying for any more drinks. He goes over to another table.
His employees still his responsibility at that point, or has
he shut down the function even though they're both still
in the same establishment.
Speaker 3 (08:43):
Yeah, I think the risk is that there's a reasonably
high risk that if anything goes wrong, the venue will
blame it on the company, and the employees could claim
that it was still a work event. It started as
a work event. Alcohol was provided. You know, best practice
(09:03):
in a situation like this would be to say we're
going to go out, we're going to have a couple
of drinks, and then everybody leaves. Then if you go
to a different venue without your boss, I think everybody's
on much safer territory. But the fact that stayed in
the same pub. Yeah all round.
Speaker 2 (09:24):
Yeah, don't tell your boss to number one.
Speaker 4 (09:27):
I like it says we told the boss.
Speaker 3 (09:31):
It sounds like there was an insurrection.
Speaker 4 (09:35):
Siah. You've got a question for Gareth, right.
Speaker 1 (09:38):
Yeah.
Speaker 5 (09:39):
I work in sales and quite any specialty, and I
believe I've got quite an intense restraint of trade in
my contract so that they can stop me working for
a competitor for twelve months. How unenforceable is that in
New Zealand.
Speaker 3 (09:54):
Yeah, that's a fantastic question, Sarah. There's this idea out
there that restraints aren't enforceable and that's not correct. And
then there are some pretty owner restraints in employment agreements
that clearly go too far. So the test that the
(10:16):
court will look at is it reasonable and is it
necessary to protect a legitimate interest that your employer has.
If you're in a niche role and you've got relationships
with suppliers, relationships with customers, and it would take a
long time for them to protect those and you could
(10:38):
take advantage of them, potentially that restraint could be enforceable,
but it really comes down to the particular circumstances of
each case. Twelve months is definitely at the upper end
of what would be considered reasonable. Generally, three months is reasonable,
six months is starting to get up there, and twelve
(11:00):
months is at the extreme end. But there are cases
where twelve months has been found to be reasonable.
Speaker 2 (11:08):
Take care, thanks Sarah. Just on that twelve months, I mean,
would there is there sometimes a caveat or part of
that deal that they pay you out something so that
at least you can survive for that twelve months.
Speaker 3 (11:20):
And often those extended restraints only apply to people on
relatively good incomes. As I say, twelve months is quite extreme,
and that can't prevent you from working full stop. It
will just prevent you from working in a way that
(11:42):
would be unfairly competing with your previous employer.
Speaker 4 (11:46):
What can the previous employer do?
Speaker 3 (11:48):
Though they can file proceedings, they can seek an injunction,
so the court could actually issue an injunction preventing you
from from doing whatever it is that's in breach of
the restraint. Generally, these things are resolved before that point
because once it goes to court, everybody lose. Accept the lawyers.
Speaker 6 (12:11):
Yeah, yeah, interesting.
Speaker 3 (12:13):
You know, with a restraint like that, I think it's
a very good idea to get some legal advice, so
you know where you stand.
Speaker 2 (12:19):
Yeah, great stuff. Good afternoon. We're joined by Gareth Abdenor,
who is the founder and director of Abdenor Law. You
can check him out Abdenorlaw dot z. He's brilliant and
he's taken your questions. Josh, good afternoon.
Speaker 7 (12:32):
Yeah, hey guys, heye, Gareth. My question is I resigned
from a position late last year and what I did
after I left, I went to make contact with previous
managers that I worked under, and so from working with
(12:53):
them previously, I asked if it would be okay if
I use them for future for a future reference will work.
At that point they said, yeah, that's that's fine. When
I actually resigned, I had a new area manager come
in and that was one of the reasons why I
thought I'm out of here. I'm just I'm going and
(13:18):
this particular person who only just gained that position, this
person's actually gone to these people who I used to
work for, and it has asked them not to supply
any references.
Speaker 2 (13:32):
It's a big one. And sorry, Josh, we're almost running
out of time. But Gareth, can they do that?
Speaker 3 (13:38):
Yeah, they most probably can. An employer is under no
legal obligation to provide you with a reference. They do
need to confirm that you work there, but they don't
have to provide you with a reference. And a lot
of businesses have a policy not to provide references and
only to provide certificates of service. So yep, potentially they
(14:00):
could they could do this.
Speaker 2 (14:01):
Yeah, very good, Gareth, great to catch up again. I
thank you very much as always, and there's plenty of
texts and phone calls the get to next time you're on,
so we'll catch you in a month's time.
Speaker 3 (14:11):
Fantastic, Thanks guys, brilliant.
Speaker 2 (14:13):
That is Gareth Abdenor, founder and director of abden Or Law.
You can check them out Ebdenorlaw dot in z.
Speaker 3 (14:19):
And that is us for today.
Speaker 4 (14:20):
Yeah, give them a toast of key.
Speaker 1 (14:21):
We talk tomorrow for more from News Talk st B.
Listen live on air or online, and keep our shows
with you wherever you go with our podcasts on iHeartRadio.
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