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July 30, 2024 15 mins

Gareth Abdinor is an Employment, Workplace & Information Expert.

He regularly joins Simon Barnett and James Daniels to answer listeners' employment related questions.

Today, a manager changing time-sheets, annual leave and personal grievances, among other things.

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Speaker 1 (00:06):
You're listening to the Simon Barnett and James Daniels Afternoons
podcast from News Talk z'b.

Speaker 2 (00:12):
Gareth Abdenor is our employment, workplace and information expert joins
us every fortnight. He's in again, Get a Gareth. Oh,
now make sure I've got that on? Get a Gareth?
Say that again? There, Bud, which micy you on? Gareth?
Go that one? There are you're going to?

Speaker 3 (00:27):
Yeah?

Speaker 2 (00:27):
Try that one? Try that one? Try all right?

Speaker 4 (00:31):
Right? Technical difficult?

Speaker 2 (00:34):
Yeah. He may be an employment contract the expert, but
with microphones not so much.

Speaker 4 (00:39):
No.

Speaker 5 (00:40):
Really, nice to see you, really, nice to see you.
Now we've got a text here already, Gareth. I advised
my employer i'd be leaving in the last week of
September and I'd let them know an exact date soon.
I've just had a week off. I still have three
weeks in arrears plus this year. They have asked me
yesterday again that they want me to take more leave

(01:02):
because it's not busy, but the payroll man at work
said it's due to the larger that I will be
paid out. I agreed to take three more days leave
when they asked me yesterday, but I was going to
use fifty percent of this lump some payment to go
to another country and live. Do I have to take
that leave?

Speaker 4 (01:20):
Yeah? This is such an age old problem and a
lot of these sort of situations come about because employers
often don't manage leave entitlements well, and then when someone
resigns there's a huge amount that needs to be paid
out to them. You don't have to take the leave

(01:41):
unless they give you fourteen days notice, But how much
do you want to push it?

Speaker 1 (01:49):
Like?

Speaker 4 (01:49):
This is one of those situations where I try and
come to compromise and leave on good terms. The sinnecon
Me says, you know, this is kind of the employer's
own fault for not managing the leave properly. This person's
tried to do the right thing and give as much

(02:09):
notice as possible, but yeah, it's not a great situation.

Speaker 2 (02:14):
O eight hundred eighty ten and eighty is our phone number.
I eight hundred eighty ten eighty or you're welcome to
text your question through to nine two ninety two if
you want to get in touch with Gareth. Hi, Gareth,
I'm currently this is a great question on text. I'm
currently helping someone I know through an employment issue at
the moment, can you please provide some information about constructive dismissal. Essentially,

(02:36):
this person's raised concerned about bullying and an informal meeting
saw this turn into a performance review. The offer has
basically been forget the bullying accusation or resign without prejudice.
What would your advice be on this?

Speaker 4 (02:50):
Yeah, gosh, there's so many red flags in this one.
You know, if you raise bullying concerns, you definitely don't
want that turning into a performance review. That's that's the
first red flag. And then you definitely don't want the
employer to say, well, you know, you can can resign
or put up with it. That's not good either. Constructive

(03:11):
dismissal is one of those really tricky things where it's
a claim that's often raised, but it's not often successful
because the employee has to prove that they had no
option but to resign. It looks like this situation might
well be one of those cases.

Speaker 5 (03:27):
Might well be Yeah, really okay, all right. Another text says, Hi, Gareth,
my brother in law has eight weeks of leave built
up and it keeps building. The contract says he gets
a day off if he works Sundays and he works
a lot of Sundays, so his work has said he
won't get any leave approved because they're short stuffed, they're
in nursing. Are they allowed to do that if it's

(03:48):
in the contract that it's entitled leave. He has had
no leave approved since the beginning of the year.

Speaker 4 (03:54):
Wow, yeah, that's a long time. Technically, if that leavers
leave that the person's entitled to, they should be able
to take it now. I think everybody knows about the
difficulties and the health sector with staffing. An employer always
has to act fairly and reasonably. Arguably not approving any

(04:17):
leave arguably that's not fair and not reasonable. So it
may be that this person has grounds for a claim.
But again, you know, you really want to try and
reach a compromise because raising a claim is generally the
beginning of the end of an employment relationship.

Speaker 2 (04:41):
This is also a great text. Good on you. I
won't mention the person's name, they've just sent it. The
second says Hi, Gareth, I'm attending a funeral tomorrow and
I asked that it would be leave without pay. They
are insistent that I use annual leave day or a
sick day. Can they enforce this.

Speaker 4 (04:56):
Well, that's bizarre. I can't see why it would be.
Sick leave leave without pay is something that an employer
has to agree to, has to Sorry, let me rephrase that.
That's something that you can only take if an employer
agrees to it. It's not something that you're entitled to.

(05:19):
And so if you don't qualify for bereavement leave, which
only applies if the relationship fits into a certain category
it's a close relationship, Yes, they could require you to
take an your leave. Okay.

Speaker 5 (05:35):
Another texter says, Hi, guys, my daughter works for a
well known employer at an after school club. She's given shifts,
which she accepts, and then when she's at work because
the kids have gone home, they send her home early.
The contract says that she must be paid in full
if shifts are canceled or cut short during that shift.
She's raised this, but at time she keep getting changed

(05:56):
by her manager. What should she do? She's using this
money to pay for accommodation at UNI has Sam.

Speaker 4 (06:03):
Yeah, I mean if the contract says that this person
has to get paid for the whole shaft, then that's
what they're entitled to. First step would be raise it
as constructively as possible and if you don't have any success,
well then I'd be inclined to either see a lawyer
or raise a grievance yourself. I mean, that's breach contract.

(06:27):
It's another red flag that the managers changing the time sheets.
That's that's not good.

Speaker 2 (06:35):
Ten to eighty we're with Gareth abdenor and Employment, Workplace
and Information Expert.

Speaker 5 (06:40):
All right, we've got a question here, says our head
office has transferred our workplace to the north Shore in Auckland.
We're currently in Newmarket. They offered us new positions at
our current site, but they would be a demotion with
a decrease in pay. At the current site. The new
officers are smaller and add over thirty minutes of travel
time and there's no parking on site anymore, so an

(07:02):
extra ten minute walk on top of all of that.
I just wanted to know if they were allowed to
do this and whether I have any rights to an
increase in wages to cover the increased commuting costs.

Speaker 4 (07:12):
This is a fantastic question and we see quite a
lot of this with employers either downsizing or moving to
flash or premises, and it can be a real issue
especially in places like Auckland with the traffic. As always,
it really comes down to exactly what's in this person's

(07:33):
employment agreements. Some employment agreements say that their place of
employment is X, and if that changes then potentially they're
being made redundant. Other ones say that they are working
from X or other locations as may be reasonably required.

(07:53):
And then it comes back to well, is it reasonable
or isn't it reasonable? I think if they've got legitimate
reasons for moving location an extra half an hour travel,
while you may need to take that on the chin,
it's interesting that they're offering roles at the current site
that require reduction in pay. I'd be interested to know

(08:20):
why that is, Why are the roles changing, and so
we'd need more detail. But it really comes down to
what is in the employment agreement about the location of work.

Speaker 2 (08:32):
Very good, Let's go to the phones. Tracy's been waiting
a hello, Tracy.

Speaker 3 (08:36):
Hi, thanks for taking my call.

Speaker 2 (08:38):
Pleasure. Gareth standing by.

Speaker 3 (08:40):
So, my son's sixteen. He works part time in hospitality.
He has three shifts per week as per his contract,
and he has to get paid for a minimum of
a two hour shift each time. But recently they've been
putting him on call for those shifts rather than him

(09:01):
actually coming in. He doesn't yet paid an on call
of balance. He has to be available to come in
at the last minute a sub disease. And I'm wondering
whether that's typical for hospitality or whether that's not okay.

Speaker 4 (09:17):
Great question, Tracy, And there are two parts to that.
Is it typical, Well, I haven't worked hospitality for twenty
five years or so, but it was definitely typical in
those days. Is it okay? It's definitely in the gray
area of the law. It arguably doesn't comply with the

(09:40):
availability provisions legislation. If he's required to be available, he
should be getting some compensation for that, So it sounds
to me that he's getting a rough deal. I guess
the difficulty is if he refuses, he may find that

(10:01):
his A role is redundant because it doesn't sound like
there's enough work. So it may be that he wants
to raise this with the employer and try and find
agreeable compromise. But you're right, it doesn't sound right, doesn't
sound fair, and arguably doesn't comply with the law.

Speaker 3 (10:23):
I thought that I tried to do a Google search
to find out more and I thought that around COVID times.
New employment agreement rules were introduced for the hospitality sector
around this to make it easier for an employer going
through difficult economic times.

Speaker 4 (10:42):
Okay, I'm not aware of that, Tracy, but I can
certainly look into that.

Speaker 2 (10:50):
Yeah, thank you very much Tracy for calling. You have
a good afternoon.

Speaker 4 (10:54):
Thank you.

Speaker 5 (10:54):
By another textas says Hi Gareth, I'm currently in the
process of being constructively dismissed and my hours are being cut.
The managers started posting rosters which give me a start
time but no finish time, so she can send me
home early when it suits. Is it legal to post
a roster with no finishing time?

Speaker 4 (11:17):
That's a good one too, Gosh, the tricky one's coming
out today. It really depends on the circumstances. Generally, No,
you need to know when your work starts and when
it finishes. I can see situations where it would only
have a start time and you get paid a minimum
like one of the previous callers. You know, you get
paid at least two hours, or you get paid at

(11:40):
least four hours. In a case like that, the roster
might not have your finished time. But generally the expectation
is you know when your work starts and when it finishes.

Speaker 5 (11:51):
At least when it finishes with that minimum worktime.

Speaker 4 (11:54):
Yeah, definitely, Gareth.

Speaker 2 (11:56):
I started my job eighteen months ago and last Christmas
I was paid out all my leave and then told
that I had to wait another twelve months before I
was entitled to my annual leave. Is this correct?

Speaker 4 (12:07):
Yeah, there's some fishooks in the Holidays Act that a
lot of people aren't aware of. In my experience, most
employers don't actually apply those provisions strictly because they actually
very unuser friendly. But yes, technically that is correct. A
lot of employers do, however, let employees take leave and advance,

(12:33):
but they don't have to.

Speaker 2 (12:35):
Okay, all right.

Speaker 5 (12:36):
Another Texter, Ben says, my sister's been laid off. The
owner changed the company name and transferred the ownership to
his wife. He's asking everyone to reapply for their jobs,
but at a lower pay rate. Is this legal?

Speaker 4 (12:52):
Certainly sounds dodgy, you know. Sometimes people say, oh, someone's
transferred the ownership. Well, it really depends on how they've
done that, if they've actually got salem purchase and exchange
of consideration for the shares. Well, potentially they might be

(13:15):
able to do this, but it doesn't sound right, and
I'd be looking into it more closely. Right, it sounds
like someone's trying to pull a fast one.

Speaker 2 (13:23):
There's some wonderful text coming and thank you for them.
This is out. We've only got time, and I hope
we have got time for this. Gareth. Hi, guys, Gareth.
My daughter is seventeen. They pay her a training wage.
She is on eighteen dollars per hour. This employees, this
place employs no one who is older than eighteen. All
fifteen staff earned the training wage. Is there a time

(13:45):
limit there can be on the training wage?

Speaker 4 (13:49):
Yeah, I don't know off the top of my head.
It's not something that I deal with all that often. Generally,
it's only when I'm on the show that the training
wage questions come up. My recollection is that there is
a limit on it, a time limit, but I don't
know what it is from the top of my head.
I do find it very strange that all of the

(14:12):
employees are on the training rage.

Speaker 2 (14:14):
Who's training them? M yeah, true, true? Then yeah, and
this teacher, I mean, we're out of time. It's a
good one because I know they've done this in the
US in terms of the TikTok accounts for some of
their politicians in the Senate, in the House, and I
think they're looking at it a New Zealand. But this
texture from Mike. He says, Hey, guys, Gareth, they won't
let me at my place of work log on to TikTok.

(14:34):
Is it a breach of my human rights?

Speaker 4 (14:36):
No?

Speaker 5 (14:38):
Is it a breach of employment.

Speaker 4 (14:39):
I'm not aware that there's a human right to access TikTok.
I know I'm old.

Speaker 2 (14:44):
My daughters would say you're wrong.

Speaker 4 (14:46):
I think my daughter would say I'm wrong. So, but
I'm pretty sure that's not a human right.

Speaker 2 (14:51):
Okay, Black Mike have to stay on those tech talk accounts. Hey, look,
we're out of time, Gareth, Thank you as always, mate,
My pleasure. Really nice about Gareth Abden all And just
to remind the content of the segment as general in nature,
not legal advice. Any information to GOT is not intended
to be a substitute for obtaining specific professional advice and
should not be relied upon as such.

Speaker 1 (15:12):
For more from Simon Barnett and James Daniels afternoons, listen
live to news talks at b or follow the podcast
on iHeartRadio,
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