June 17, 2024 • 16 mins
Gareth Abdinor is an Employment, Workplace & Information Expert.
He regularly joins Simon Barnett and James Daniels to answer listeners' employment related questions.
Today, sick leave and gagging clauses and work attire, among other things.
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Episode Transcript
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Speaker 1 (00:06):
You're listening to the Simon Barnett and James Daniels Afternoons
podcast from News Talk ZEDB.
Speaker 2 (00:12):
Gareth Abden or you know him now. He's an employment,
workplace and information expert. He joins us every fortnight.
Speaker 3 (00:18):
Geta Gareth Good day guys.
Speaker 2 (00:20):
Hey man, I got a question you'd like to put
Togareth about your contract, your employment law, anything. Now's your
opportunity our eight hundred and eighty ten eighty or if
you prefer to text us, you can do that. Just
text your question to nine two nine two straight away.
Speaker 3 (00:34):
Sue's given us a call.
Speaker 4 (00:35):
Hello, Sue, Hello, I'm putting over. I am on a bluetoose,
but I will for like a Christmas road noise. So
my question is I have a colleague who's going through
cancer treatment chemotherapy, and our workplace has decided, without any
consultation with her, that she has to use her six
(00:57):
leave and then her holiday pay to take the two
days off a week sorry a fortnight that she's having chemos.
I wanted to know because in my mind that's not
right without any discussion or anything. Is that is that
okay by an employer to do that?
Speaker 5 (01:15):
Great question? So yes, Technically that is the appropriate way
to deal with this situation. Some employers do make other
arrangements and provide additional leave for people in their circumstances,
but technically that's what sick leave is for. And yes,
(01:38):
it's it's really unfortunate for that particular employee.
Speaker 4 (01:44):
And you know, I think she is capable of working.
She can work remotely while she's only on treatment one
day when she's in the hospital, and then the other
day she's got a drippy thing going on, right, and
she's capable of working. That's what she said. I'm capable
of working. And but but my question two was how
(02:06):
care is that without your new discussion with her, she
is just told she's yeah.
Speaker 5 (02:12):
I mean, as I always say, there is this mutual
obligation of good faith. So there should be a discussion
and if she thinks it's unfair, she should raise it.
A lot of employees do have this idea that they're
entitled to work from home, and that's not correct either.
If if this employee's employment agreement says that they will
(02:33):
work from the employer's premises, then that's where they need
to work from unless there's an agreement for them to
do otherwise.
Speaker 4 (02:42):
So yeah, agreement.
Speaker 5 (02:44):
Yeah, so you know, she she should raise this and
have a discussion with the employer. And she doesn't think
she's being treated fairly, she always has the opportunity to
raise a grievance.
Speaker 6 (02:54):
And she can take a support person with her, couldn't she.
Speaker 3 (02:57):
Yes, she can.
Speaker 2 (02:58):
Yeah, yeah, could be used to good question sue good.
Speaker 4 (03:02):
We're in different towns, so it's not wouldn't work, but yes,
I'm gladly go okay, so basically to summarized, sorry, I
won't take that much more time that the employee is
the right to do this, yes.
Speaker 5 (03:14):
But there should be a discussion.
Speaker 3 (03:16):
Yeah, yeah, thank you, so good on you. Best of luck.
Speaker 2 (03:19):
Hello Andrew, Hello, how are you guys?
Speaker 3 (03:21):
Good? Thank you mate, how can we here?
Speaker 7 (03:24):
It's always good to listen to you guys. Carry on it, yeah,
thank you, Matte.
Speaker 3 (03:28):
Anyway, we'll bring it on, appreciate it.
Speaker 7 (03:31):
I think for the time for the question, Yeah, I've
just reached the end of my ninety day trial. Well,
you know, my three months is up. What's the process
of my employer Now, I've sort of been doing fifty
hour weeks since I've started.
Speaker 5 (03:45):
Well, Andrew, and unless your employer tries to terminate in
reliance on the ninety days. You you just keep working.
It's it's one of those things where unless they do
something to rely on those termination provisions, you just you
keep working and your employment is permanent. Okay, So you
(04:07):
don't have to do anything and they don't have to
do anything, and if neither of you do anything, it's
all good.
Speaker 2 (04:15):
Okay.
Speaker 7 (04:15):
So I started back as a casual. Then I started
back as a casual, and my hours was supposed to
be thirty hours a week fifteen.
Speaker 5 (04:26):
Yeah, Well, I mean if you can't be a casual
on a ninety day trial period, So either you're casual
or you're a permanent employee, you're on a ninety day
trial period. It can't be both. So it sounds like
there might be a bit of confusion about it what
your terms are, and I would be I'd be asking
(04:47):
for a copy of your contract and raising that with
your employer. And if your hours were supposed to be
thirty hours and you've been working fifty hours for three months,
you might want to raise that as well.
Speaker 7 (05:00):
Yeah, because obviously I don't get the full holiday benefits.
Speaker 6 (05:04):
Yeah.
Speaker 3 (05:05):
Good, good on you, Andrew, Thank you very much. For
calling mate.
Speaker 2 (05:08):
It is twenty one minutes to four Texas.
Speaker 6 (05:10):
Says Hi Gareth. I'm a tradee and our boss has
introduced an on call roster out of the blue, not
in the contract, not really any consultation, not everyone as
part of it either. We're expected to be on call
for one week every six I have a life outside
of work, and I feel like this isn't what I
signed up for. Surely this isn't legal. But is there
anything I can do without ruining my relationship with my boss?
Speaker 3 (05:34):
Yeah?
Speaker 5 (05:35):
That's fantastic because often people forget that second part. You
can go, You can go in like a bull in
a china shop, but generally that means you end up leaving.
I would raise it in as constructive a way as possible. Generally,
if there is a variation in your hours or going
(05:57):
on call when that wasn't previously the case, that needs
to be agreed to now. Of course, if your employer
hasn't done that, you're in a pretty sh strong position
to raise this, But do it constructively. Is there room
for a compromise. It sounds to me that you want
to keep this relationship on good terms. Maybe there's room
(06:20):
for a compromise that means you can do some on
call work, you get some compensation for it, and the
legislation does require you to get some sort of benefitable
compensation for being available to work outside of normal hours
that also lets you do your hobbies and your life
outside of work. That would be my suggestion.
Speaker 2 (06:43):
Okay, Gareth, I worked for a part of the DHB.
I recently left, but they got me to sign a
form that said literally that I would not bad mouth
of them.
Speaker 3 (06:53):
Is this legal? And how long before I can comment?
Speaker 5 (06:57):
Yeah, in general terms and not commenting on this particular
caller's case because we don't have enough information that you
could agree to that. But generally there should be some
sort of consideration for it, so they should payment sort
of thing a payment, and then you're agree not to
make any negative comments.
Speaker 2 (07:17):
Right, So without a payment, does any employer have the
right to say you can't disparage us?
Speaker 5 (07:21):
No?
Speaker 6 (07:22):
Okay, that must have been in writing at some stage.
Speaker 5 (07:26):
I would have thought so, I would have expected that.
Of course, if you if you make negative comments about
anyone and it's not true, it could be defamation. So
tread lightly.
Speaker 2 (07:36):
Good answer, Paul, Hello mate o, good Hey Paul, welcome.
Speaker 3 (07:41):
Yeah, good, thanks you.
Speaker 8 (07:43):
Good, good good. Hey, just the opit of a weird question.
Speaker 9 (07:46):
If you've.
Speaker 8 (07:48):
Basically coffee coffee shop and one of the the people
that works at the shop decides to wear a hamas
khalifa around their neck to work, obviously they're anti Palestine
from the river to the sea is and you just
you know, coffee shops. There's a lot of availably Jewish
(08:09):
people from the local old folks home. That's incredibly offensive
to them. But do we have the right to come
to take it off?
Speaker 4 (08:18):
Yeah?
Speaker 5 (08:19):
That is an odd but very topical question, and a
lot really depends on, you know, is there something in
the employment agreement that says that they have to wear
a uniform or presentation requirements? And if not, you really
need to have a discussion with them. You're the boss,
are you, Paul, Yeah, yeah, and explain the situation. Now,
(08:43):
you do need to be careful that, you know, people
do have freedom of expression, but if that's impacting on
the job and on the business that they're working at,
that could potentially be a breach of good faith. But
it's not a straightforward situation and you need to be careful.
Speaker 3 (09:04):
Right, Yeah, that is tricky, isn't it.
Speaker 2 (09:06):
So can an employer those specifically state, you know, particularly
around something like you address poor Can they specifically state
what they their wishes if they let's say they pro
Palestine or yeah, yeah, right.
Speaker 5 (09:18):
You can ask them. But you know, I mean, someone
wearing something supporting Palestine could be offensive to some people,
but but it could be a legitimate belief of theirs.
And likewise, someone wearing the star of David right could
be or there's Israeli flag that could be offensive to
(09:38):
other people. So you need to be very careful. You
can't discriminate because there's you know, legislation that prevents you
discriminating on certain grounds. And you need to be reasonable.
And as as we've seen in the media, you know,
when when people get involved in this debate, it is
quite easy to cause offense.
Speaker 6 (09:58):
Yeah, but you can sit dress standards, you can't employ
you Yeah, okay, excellent.
Speaker 8 (10:03):
Question posthumously in the in the in the contract and
I I can say, look, hey, we've made adjustment to
the contracts. Need you to sign here, this is safe,
this is now we now require a uniform. And these
are the stipulations around the uniform. What you can and
can't do.
Speaker 5 (10:15):
Yeah, you'd need to consult with them, and most probably
the best way to do it would be to bring
in a policy rather than try and amend the employment agreement,
because I mean, in the employment agreement you need to
get their agreement to that. But this is something where
I really think you should you should actually take some
legal advice because the cost of getting it wrong a
(10:38):
most probably going to be worth spending some money on.
Speaker 3 (10:40):
Yeah, very good free days.
Speaker 2 (10:42):
It's got a problem, mate, Oh, thank you mate, good
good question difficult one. Hi Tom, good mate, Thank you,
Gareth standing by here.
Speaker 9 (10:55):
That's a question. I went for a reasonably big company
of New Zealand, quite heavily juniorize, but I'm on an
individual employment agreement. I recently had a meeting with my
manager to discuss adding some additional terms just to help
with sort of the work conditions, and he advised me
(11:18):
that for an IA he was unable to trust any
of the terms of my contract, effectively saying I would
need to resign and reapply to the terms of my contract.
Is that correct?
Speaker 5 (11:31):
No, that sounds that sounds pretty odd to me, and
it sounds like maybe he was just taking the easy
way out. I certainly I wouldn't be resigning just to
possibly get an amended agreement. Don't do that. But no,
that sounds odd to me.
Speaker 9 (11:50):
How would you go about trying to negotiate that with
a manager that's sort of playing that line would be
a good angle.
Speaker 5 (11:57):
Well, I'd most probably wait until I had something that
the manager wanted. You know, if you're if you're doing
extra hours that are over and above what's in your agreement,
or they want you to do something that's not technically
part of your agreement, you might want to have a
bit of a negotiation at that point. Otherwise, wait until
(12:18):
your annual review. But yeah, you know, as I always say,
changing an agreement requires agreement. But don't resign to possibly
get an amended agreement. That sounds.
Speaker 9 (12:33):
Wanting to confirm that it was you know, I was.
I know that is actually a bit more so than that.
Speaker 2 (12:39):
Yeah, definitely, thank you, Tom, Thank you, mate, thank you.
We'll take one more call Sime and hello.
Speaker 10 (12:44):
There, Hello Jarrey? How are you good?
Speaker 5 (12:48):
Good? How can we help?
Speaker 7 (12:49):
He is?
Speaker 10 (12:51):
I am sixty seven years old and I'm walking in
one of the supermarkets. I requested my hours to be
my days to be reduced from five days to four days,
but it was declined and I felt there was something
fishy about it. They just wanted me to resign. It's
just my feeling, but I cannot confirm that to you.
Speaker 5 (13:16):
Yeah, you know, as I was saying to the previous schooler,
you can ask to reduce your hours and your employer
doesn't have to agree to that, as long as they
consider it in good faith. That they might want you
to resign, I don't know, and certainly it doesn't sound
like you have evidence of that, and if you want
(13:39):
to pursue it, FI you need evidence.
Speaker 10 (13:42):
But I'm very sure it's done in bad faith because
I'm only reducing my hours too, by one hour, and
it's that very difficult to find someone. They just because
I'm working in a supermarket industry and it's normal to
hire every now and then, every now and then, and
(14:04):
there's no problem to the vacancy of ours.
Speaker 5 (14:11):
Yeah, you may think that's mean, but as long as
they've considered your request, they are entitled to refuse it
or decline it.
Speaker 3 (14:20):
Thank you, simin appreciate it.
Speaker 6 (14:21):
Okay, last text here, how robust restraint of trade clauses
within contracts. I've got a contract that says I can't
work within the same industry in a similar role for
a period of six months.
Speaker 5 (14:34):
Yeah, the starting point is that they need to be reasonable.
In reasonableness really depends on the particular circumstances of each
employment relationship. So what might be reasonable for a chief
executive of a major organization in New Zealand, it's going
to be very different from what's reasonable for someone working
(14:55):
in the corner deiry or that.
Speaker 3 (14:57):
Makes sense coffee shop.
Speaker 5 (14:58):
So you know it, it may be reasonable.
Speaker 3 (15:02):
So can you contest it?
Speaker 5 (15:05):
Yeah, you can, but of course if you've agreed to it,
you're kind of on the back fop true. Now, if
you don't think it's going to be enforceable, then the
courts have said the best thing to do is to
say to your employer, I'm leaving, I don't think this
is enforceable, rather than just going off and breaching it.
(15:28):
But it really depends, and it's difficult to know if
six months is going to be reasonable or not because
we don't know about the role. It could be reasonable,
it's at the it's at the upper end. Six months
is six months is, but it could be okay.
Speaker 2 (15:44):
Last text and it's a yes or no, because we're
out of time, Gareth, O case, so you don't even
have a chance to expand on this. Hi, Gareth, I'm
an employee er. My employee requested a week's annual leave,
which I granted. However, I've since found out he used
that week off to work for his father, so he
hasn't rested. He's come back to work TRD. Is that
a legitimate way to use annual leave?
Speaker 5 (16:05):
It depends?
Speaker 3 (16:07):
It depends?
Speaker 6 (16:08):
Is actually yes? I think he can do what he
likes when he's on leave.
Speaker 5 (16:13):
Surely yes or no, as long as it doesn't conflict
with his obligations to his employer.
Speaker 3 (16:18):
True.
Speaker 2 (16:19):
But if the employer feels he comes back nack it
and isn't fit for purpose anymore, you.
Speaker 5 (16:23):
Could potentially raise that as a question.
Speaker 2 (16:25):
Yep, hopefully that helps. Wasn't quite yes or no? But
Gareth love having you in. Thank you very much, pleasure,
great questions, Gareth Abden or employment lawyer. Just a reminder
to the content of this segment as general in nature
and not legal advice. Any information discussed does not intended
to be a substitute for obtaining specific professional advice and
should not be relied upon as such.
Speaker 1 (16:46):
For more from Simon Barnett and James Daniels afternoons, listen
live to News Talk said Be or follow the podcast
on iHeartRadio
You're listening to the Simon Barnett and James Daniels Afternoons
podcast from News Talk ZEDB.
Speaker 2 (00:12):
Gareth Abden or you know him now. He's an employment,
workplace and information expert. He joins us every fortnight.
Speaker 3 (00:18):
Geta Gareth Good day guys.
Speaker 2 (00:20):
Hey man, I got a question you'd like to put
Togareth about your contract, your employment law, anything. Now's your
opportunity our eight hundred and eighty ten eighty or if
you prefer to text us, you can do that. Just
text your question to nine two nine two straight away.
Speaker 3 (00:34):
Sue's given us a call.
Speaker 4 (00:35):
Hello, Sue, Hello, I'm putting over. I am on a bluetoose,
but I will for like a Christmas road noise. So
my question is I have a colleague who's going through
cancer treatment chemotherapy, and our workplace has decided, without any
consultation with her, that she has to use her six
(00:57):
leave and then her holiday pay to take the two
days off a week sorry a fortnight that she's having chemos.
I wanted to know because in my mind that's not
right without any discussion or anything. Is that is that
okay by an employer to do that?
Speaker 5 (01:15):
Great question? So yes, Technically that is the appropriate way
to deal with this situation. Some employers do make other
arrangements and provide additional leave for people in their circumstances,
but technically that's what sick leave is for. And yes,
(01:38):
it's it's really unfortunate for that particular employee.
Speaker 4 (01:44):
And you know, I think she is capable of working.
She can work remotely while she's only on treatment one
day when she's in the hospital, and then the other
day she's got a drippy thing going on, right, and
she's capable of working. That's what she said. I'm capable
of working. And but but my question two was how
(02:06):
care is that without your new discussion with her, she
is just told she's yeah.
Speaker 5 (02:12):
I mean, as I always say, there is this mutual
obligation of good faith. So there should be a discussion
and if she thinks it's unfair, she should raise it.
A lot of employees do have this idea that they're
entitled to work from home, and that's not correct either.
If if this employee's employment agreement says that they will
(02:33):
work from the employer's premises, then that's where they need
to work from unless there's an agreement for them to
do otherwise.
Speaker 4 (02:42):
So yeah, agreement.
Speaker 5 (02:44):
Yeah, so you know, she she should raise this and
have a discussion with the employer. And she doesn't think
she's being treated fairly, she always has the opportunity to
raise a grievance.
Speaker 6 (02:54):
And she can take a support person with her, couldn't she.
Speaker 3 (02:57):
Yes, she can.
Speaker 2 (02:58):
Yeah, yeah, could be used to good question sue good.
Speaker 4 (03:02):
We're in different towns, so it's not wouldn't work, but yes,
I'm gladly go okay, so basically to summarized, sorry, I
won't take that much more time that the employee is
the right to do this, yes.
Speaker 5 (03:14):
But there should be a discussion.
Speaker 3 (03:16):
Yeah, yeah, thank you, so good on you. Best of luck.
Speaker 2 (03:19):
Hello Andrew, Hello, how are you guys?
Speaker 3 (03:21):
Good? Thank you mate, how can we here?
Speaker 7 (03:24):
It's always good to listen to you guys. Carry on it, yeah,
thank you, Matte.
Speaker 3 (03:28):
Anyway, we'll bring it on, appreciate it.
Speaker 7 (03:31):
I think for the time for the question, Yeah, I've
just reached the end of my ninety day trial. Well,
you know, my three months is up. What's the process
of my employer Now, I've sort of been doing fifty
hour weeks since I've started.
Speaker 5 (03:45):
Well, Andrew, and unless your employer tries to terminate in
reliance on the ninety days. You you just keep working.
It's it's one of those things where unless they do
something to rely on those termination provisions, you just you
keep working and your employment is permanent. Okay, So you
(04:07):
don't have to do anything and they don't have to
do anything, and if neither of you do anything, it's
all good.
Speaker 2 (04:15):
Okay.
Speaker 7 (04:15):
So I started back as a casual. Then I started
back as a casual, and my hours was supposed to
be thirty hours a week fifteen.
Speaker 5 (04:26):
Yeah, Well, I mean if you can't be a casual
on a ninety day trial period, So either you're casual
or you're a permanent employee, you're on a ninety day
trial period. It can't be both. So it sounds like
there might be a bit of confusion about it what
your terms are, and I would be I'd be asking
(04:47):
for a copy of your contract and raising that with
your employer. And if your hours were supposed to be
thirty hours and you've been working fifty hours for three months,
you might want to raise that as well.
Speaker 7 (05:00):
Yeah, because obviously I don't get the full holiday benefits.
Speaker 6 (05:04):
Yeah.
Speaker 3 (05:05):
Good, good on you, Andrew, Thank you very much. For
calling mate.
Speaker 2 (05:08):
It is twenty one minutes to four Texas.
Speaker 6 (05:10):
Says Hi Gareth. I'm a tradee and our boss has
introduced an on call roster out of the blue, not
in the contract, not really any consultation, not everyone as
part of it either. We're expected to be on call
for one week every six I have a life outside
of work, and I feel like this isn't what I
signed up for. Surely this isn't legal. But is there
anything I can do without ruining my relationship with my boss?
Speaker 3 (05:34):
Yeah?
Speaker 5 (05:35):
That's fantastic because often people forget that second part. You
can go, You can go in like a bull in
a china shop, but generally that means you end up leaving.
I would raise it in as constructive a way as possible. Generally,
if there is a variation in your hours or going
(05:57):
on call when that wasn't previously the case, that needs
to be agreed to now. Of course, if your employer
hasn't done that, you're in a pretty sh strong position
to raise this, But do it constructively. Is there room
for a compromise. It sounds to me that you want
to keep this relationship on good terms. Maybe there's room
(06:20):
for a compromise that means you can do some on
call work, you get some compensation for it, and the
legislation does require you to get some sort of benefitable
compensation for being available to work outside of normal hours
that also lets you do your hobbies and your life
outside of work. That would be my suggestion.
Speaker 2 (06:43):
Okay, Gareth, I worked for a part of the DHB.
I recently left, but they got me to sign a
form that said literally that I would not bad mouth
of them.
Speaker 3 (06:53):
Is this legal? And how long before I can comment?
Speaker 5 (06:57):
Yeah, in general terms and not commenting on this particular
caller's case because we don't have enough information that you
could agree to that. But generally there should be some
sort of consideration for it, so they should payment sort
of thing a payment, and then you're agree not to
make any negative comments.
Speaker 2 (07:17):
Right, So without a payment, does any employer have the
right to say you can't disparage us?
Speaker 5 (07:21):
No?
Speaker 6 (07:22):
Okay, that must have been in writing at some stage.
Speaker 5 (07:26):
I would have thought so, I would have expected that.
Of course, if you if you make negative comments about
anyone and it's not true, it could be defamation. So
tread lightly.
Speaker 2 (07:36):
Good answer, Paul, Hello mate o, good Hey Paul, welcome.
Speaker 3 (07:41):
Yeah, good, thanks you.
Speaker 8 (07:43):
Good, good good. Hey, just the opit of a weird question.
Speaker 9 (07:46):
If you've.
Speaker 8 (07:48):
Basically coffee coffee shop and one of the the people
that works at the shop decides to wear a hamas
khalifa around their neck to work, obviously they're anti Palestine
from the river to the sea is and you just
you know, coffee shops. There's a lot of availably Jewish
(08:09):
people from the local old folks home. That's incredibly offensive
to them. But do we have the right to come
to take it off?
Speaker 4 (08:18):
Yeah?
Speaker 5 (08:19):
That is an odd but very topical question, and a
lot really depends on, you know, is there something in
the employment agreement that says that they have to wear
a uniform or presentation requirements? And if not, you really
need to have a discussion with them. You're the boss,
are you, Paul, Yeah, yeah, and explain the situation. Now,
(08:43):
you do need to be careful that, you know, people
do have freedom of expression, but if that's impacting on
the job and on the business that they're working at,
that could potentially be a breach of good faith. But
it's not a straightforward situation and you need to be careful.
Speaker 3 (09:04):
Right, Yeah, that is tricky, isn't it.
Speaker 2 (09:06):
So can an employer those specifically state, you know, particularly
around something like you address poor Can they specifically state
what they their wishes if they let's say they pro
Palestine or yeah, yeah, right.
Speaker 5 (09:18):
You can ask them. But you know, I mean, someone
wearing something supporting Palestine could be offensive to some people,
but but it could be a legitimate belief of theirs.
And likewise, someone wearing the star of David right could
be or there's Israeli flag that could be offensive to
(09:38):
other people. So you need to be very careful. You
can't discriminate because there's you know, legislation that prevents you
discriminating on certain grounds. And you need to be reasonable.
And as as we've seen in the media, you know,
when when people get involved in this debate, it is
quite easy to cause offense.
Speaker 6 (09:58):
Yeah, but you can sit dress standards, you can't employ
you Yeah, okay, excellent.
Speaker 8 (10:03):
Question posthumously in the in the in the contract and
I I can say, look, hey, we've made adjustment to
the contracts. Need you to sign here, this is safe,
this is now we now require a uniform. And these
are the stipulations around the uniform. What you can and
can't do.
Speaker 5 (10:15):
Yeah, you'd need to consult with them, and most probably
the best way to do it would be to bring
in a policy rather than try and amend the employment agreement,
because I mean, in the employment agreement you need to
get their agreement to that. But this is something where
I really think you should you should actually take some
legal advice because the cost of getting it wrong a
(10:38):
most probably going to be worth spending some money on.
Speaker 3 (10:40):
Yeah, very good free days.
Speaker 2 (10:42):
It's got a problem, mate, Oh, thank you mate, good
good question difficult one. Hi Tom, good mate, Thank you,
Gareth standing by here.
Speaker 9 (10:55):
That's a question. I went for a reasonably big company
of New Zealand, quite heavily juniorize, but I'm on an
individual employment agreement. I recently had a meeting with my
manager to discuss adding some additional terms just to help
with sort of the work conditions, and he advised me
(11:18):
that for an IA he was unable to trust any
of the terms of my contract, effectively saying I would
need to resign and reapply to the terms of my contract.
Is that correct?
Speaker 5 (11:31):
No, that sounds that sounds pretty odd to me, and
it sounds like maybe he was just taking the easy
way out. I certainly I wouldn't be resigning just to
possibly get an amended agreement. Don't do that. But no,
that sounds odd to me.
Speaker 9 (11:50):
How would you go about trying to negotiate that with
a manager that's sort of playing that line would be
a good angle.
Speaker 5 (11:57):
Well, I'd most probably wait until I had something that
the manager wanted. You know, if you're if you're doing
extra hours that are over and above what's in your agreement,
or they want you to do something that's not technically
part of your agreement, you might want to have a
bit of a negotiation at that point. Otherwise, wait until
(12:18):
your annual review. But yeah, you know, as I always say,
changing an agreement requires agreement. But don't resign to possibly
get an amended agreement. That sounds.
Speaker 9 (12:33):
Wanting to confirm that it was you know, I was.
I know that is actually a bit more so than that.
Speaker 2 (12:39):
Yeah, definitely, thank you, Tom, Thank you, mate, thank you.
We'll take one more call Sime and hello.
Speaker 10 (12:44):
There, Hello Jarrey? How are you good?
Speaker 5 (12:48):
Good? How can we help?
Speaker 7 (12:49):
He is?
Speaker 10 (12:51):
I am sixty seven years old and I'm walking in
one of the supermarkets. I requested my hours to be
my days to be reduced from five days to four days,
but it was declined and I felt there was something
fishy about it. They just wanted me to resign. It's
just my feeling, but I cannot confirm that to you.
Speaker 5 (13:16):
Yeah, you know, as I was saying to the previous schooler,
you can ask to reduce your hours and your employer
doesn't have to agree to that, as long as they
consider it in good faith. That they might want you
to resign, I don't know, and certainly it doesn't sound
like you have evidence of that, and if you want
(13:39):
to pursue it, FI you need evidence.
Speaker 10 (13:42):
But I'm very sure it's done in bad faith because
I'm only reducing my hours too, by one hour, and
it's that very difficult to find someone. They just because
I'm working in a supermarket industry and it's normal to
hire every now and then, every now and then, and
(14:04):
there's no problem to the vacancy of ours.
Speaker 5 (14:11):
Yeah, you may think that's mean, but as long as
they've considered your request, they are entitled to refuse it
or decline it.
Speaker 3 (14:20):
Thank you, simin appreciate it.
Speaker 6 (14:21):
Okay, last text here, how robust restraint of trade clauses
within contracts. I've got a contract that says I can't
work within the same industry in a similar role for
a period of six months.
Speaker 5 (14:34):
Yeah, the starting point is that they need to be reasonable.
In reasonableness really depends on the particular circumstances of each
employment relationship. So what might be reasonable for a chief
executive of a major organization in New Zealand, it's going
to be very different from what's reasonable for someone working
(14:55):
in the corner deiry or that.
Speaker 3 (14:57):
Makes sense coffee shop.
Speaker 5 (14:58):
So you know it, it may be reasonable.
Speaker 3 (15:02):
So can you contest it?
Speaker 5 (15:05):
Yeah, you can, but of course if you've agreed to it,
you're kind of on the back fop true. Now, if
you don't think it's going to be enforceable, then the
courts have said the best thing to do is to
say to your employer, I'm leaving, I don't think this
is enforceable, rather than just going off and breaching it.
(15:28):
But it really depends, and it's difficult to know if
six months is going to be reasonable or not because
we don't know about the role. It could be reasonable,
it's at the it's at the upper end. Six months
is six months is, but it could be okay.
Speaker 2 (15:44):
Last text and it's a yes or no, because we're
out of time, Gareth, O case, so you don't even
have a chance to expand on this. Hi, Gareth, I'm
an employee er. My employee requested a week's annual leave,
which I granted. However, I've since found out he used
that week off to work for his father, so he
hasn't rested. He's come back to work TRD. Is that
a legitimate way to use annual leave?
Speaker 5 (16:05):
It depends?
Speaker 3 (16:07):
It depends?
Speaker 6 (16:08):
Is actually yes? I think he can do what he
likes when he's on leave.
Speaker 5 (16:13):
Surely yes or no, as long as it doesn't conflict
with his obligations to his employer.
Speaker 3 (16:18):
True.
Speaker 2 (16:19):
But if the employer feels he comes back nack it
and isn't fit for purpose anymore, you.
Speaker 5 (16:23):
Could potentially raise that as a question.
Speaker 2 (16:25):
Yep, hopefully that helps. Wasn't quite yes or no? But
Gareth love having you in. Thank you very much, pleasure,
great questions, Gareth Abden or employment lawyer. Just a reminder
to the content of this segment as general in nature
and not legal advice. Any information discussed does not intended
to be a substitute for obtaining specific professional advice and
should not be relied upon as such.
Speaker 1 (16:46):
For more from Simon Barnett and James Daniels afternoons, listen
live to News Talk said Be or follow the podcast
on iHeartRadio
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