August 26, 2024 • 14 mins
Gareth Abdinor is an Employment, Workplace & Information Expert and Director of Abdinor Employment Law.
He regularly joins Simon Barnett and James Daniels to answer listeners' employment related questions.
Today, constructive dismissal, restructuring, and the removal of a redundancy clause after a takeover, among other things.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:06):
You're listening to the Simon Barnett and James Daniels Afternoons
podcast from News Talk ZEDB.
Speaker 2 (00:12):
We are in studio with Gareth Abden or our employment
law expert. Phones are open Tyler's standing by. Gooday Gareth,
Good day guys. Texts are already pouring in our phone
calls too, so let's crack on.
Speaker 3 (00:23):
All right, Hi, Gareth. My friend had an annual performance review.
One week after that he had a pay review and
pay was increased. Then one week after that they announced
a restructure. After feedback closed, they announced that that restructure
would proceed. They made no attempts to offer any alternative
roles in the company, and after the announced restructure would
(00:45):
go ahead, they were given their notice. We also noticed
that most staff let go were of non New Zealand origin.
Is there a potential for a PG.
Speaker 4 (00:55):
Well, I'd hate to say this, but I'm going to
say there's always potential for a PG. Yeah. It does
sound a little bit suspicious, but you've got to remember
that a restructure supposed to be about roles, not about individuals.
So I could see the possibility of someone getting a
pay rise if that individual has performed really well and
(01:17):
worked really hard and done a good job, they could
get a pay rise. And then if the company looks
at the structure and says, well, actually we don't need
that person's role anymore, that could fit. But it does
seem a little bit odd.
Speaker 3 (01:32):
The timing is a bit yeah diff time, isn't it.
Speaker 1 (01:34):
Now.
Speaker 4 (01:35):
Employers are legally obliged to look at redeployment, and so
if there are jobs that are open or vacant in
the business, they have to look at whether the person
could be redeployed to them. Of course, you know, sometimes
we see some an executive on one hundred k plus
and there's a vacancy for a laborer or a cleaner
(01:59):
on significantly lower wages. Well, most of the time they
wouldn't want that job, and finance they couldn't take that job.
So it really depends on the details.
Speaker 2 (02:11):
A lot of personal grievances coming about. This is a
lengthy text, but it's a good one. Gareth. I'm currently
undergoing a process of being constructively dismissed, mainly by having
my hours of work reduced, although there has been some
nastiness from the manager toward me as well. My contract
has my hours as between twenty five and forty five
per week. However, before I signed the contract, I made
(02:32):
my employer aware via that I require a minimum of
thirty five hours a week to meet my financial commitments.
He replied in an email with a breakdown of what
my hours of work would be, which was enough time
for me. I have worked those hours since I started
in November until the constructive dismissal started. Does my employers
promise to me in writing carry any weight if I
(02:54):
was to take a PG.
Speaker 4 (02:56):
Yes, it most probably does. There's a reasonable argument that
that email from the employer varied the contract and provided
a new minim. The other red flag is it's very
unusual to have hours of work that are such variance.
You know, twenty five to forty five. That's a huge difference.
Speaker 2 (03:19):
That's full time halftime, isn't it.
Speaker 4 (03:20):
Yeah, so that's quite unusual. The other red flag is
people often talk about constructive dismissal and they don't quite
get the concept correct. For there to be a constructive dismissal,
someone has to be dismissed. Now, they can be dismissed
by resigning because they feel like they have no option.
It sounds like this person's still working, so there's no
(03:43):
constructive dismissal. They would actually have to resign and then
claim constructive dismissal.
Speaker 2 (03:49):
Right, good distinction. Okay.
Speaker 3 (03:51):
Another text says, Hi, boys, I'm on a casual contract,
but I do the same shifts weeken and week out.
At what stage does that become a permanent position? Currently
I'm working regular hours of forty hours per week and
I have been for months.
Speaker 4 (04:08):
This is a fantastic question, and casual employment is one
of those things that employers seem to get wrong more
often than they get right. A lot of employees start
as a casual employee and then over time, like this person,
it appears their employment gets a degree of regularity, and
(04:29):
as soon as it's got that regularity and there's an
expectation of ongoing work, then they're no longer casual and
they become a permanent employee. They could be a permanent
employee with no fixed hours of work, although in this
case you kind of wonder if the hours of work
are forty hours a week, if that's what the person's
been doing for months.
Speaker 2 (04:49):
Okay, this is a fairly frank text from Scotty. He says, Gareth,
we have a guy who used to be an all
rounder in our place of work, now is refusing to
do certain tasks. If we restructure, can we get rid
of this bloke?
Speaker 4 (05:04):
Potentially you could, but it sounds to me that this
is actually more performance or a disciplinary issue. If the
work that this person used to do is part of
their role, it's arguably part of their job description, and
now they're refusing to do it, that's a disciplinary issue.
(05:25):
And you know you can issue a warning and potentially
dismiss someone if they repeatedly refuse to follow your instructions.
It's also quite likely a performance issue, and so while
you might be able to restructure them out, I often
think it's better to actually deal with the issue that
you have rather than creating another one.
Speaker 2 (05:47):
Excellent answer Jess, Hello, welcome.
Speaker 5 (05:52):
Oh hi, it's a turn.
Speaker 2 (05:53):
Yes, it's your turn. Jess, Gareth's listening.
Speaker 5 (05:56):
Oh good, Thank you very much. Look sort of a
general enquiry. My daughter and always been working in an
industry for.
Speaker 6 (06:02):
About four years.
Speaker 5 (06:05):
During the last year the change from one company. While
the company was brought out by another company around the
beginning of this year, they rewrote their contracts and took
out redundancy clauses. And said, I do not worry your
job's safe. She's currently having to reapply for her role,
So I suppose the question is in good faith, they
(06:29):
thought that the removal of redundancy was not an issue.
Now I wonder, like, if she doesn't have a job, this.
Speaker 6 (06:36):
Is an issue. I mean it will be.
Speaker 5 (06:38):
But what she misslied, I suppose to my question.
Speaker 2 (06:42):
Yeah, a couple of alarm bells there.
Speaker 4 (06:45):
Yeah, there's a lot of alarm bells there. I'm quite
concerned about your job is safe. And I guess it
depends on exactly what the employer said at the time,
is that your job is safe now or your job
is going to be safe forever. And I think relying
(07:08):
on someone saying your job is going to be safe
and thinking that's going to be forever, that that seems
a bit unrealistic.
Speaker 2 (07:16):
Can they just remove redundancy clauses.
Speaker 4 (07:18):
Only if you agree to it? Now, they can only
change an employment agreement if the other party agrees. Now,
it could be that they gave some sort of benefit
an exchange for changing that, and we often see that
where someone will get a pay rise, but company car
gets removed, our redundancy benefit gets removed, So it really depends.
Speaker 2 (07:41):
Did you know, Jess, whether your daughter got any benefits
for having that redundancy removed.
Speaker 5 (07:47):
She didn't get this benefits. There was no pay rise.
I suppose employee wondered at the time such it was
a good faith model that they were following.
Speaker 4 (07:57):
Yeah, yeah, I mean potentially got a claim. Certainly, it
looks like that could be a breach of good faith there,
so I guess you'd have to see how that restructure
played out.
Speaker 5 (08:13):
Sure, Okay, look, thanks pretty much for that. It's sort
of what I thought you might say. I mean, if
she is offered a job tomorrow, then she'll.
Speaker 4 (08:20):
Be fine, Yeah, take the job.
Speaker 5 (08:22):
Not yet, absolutely, Jess.
Speaker 2 (08:25):
Thank you for that question.
Speaker 3 (08:26):
Very good. It was Hi, guys, there's a texture. I'm
on wages around one hundred and twenty thousand dollars a year,
and my employer now wants me to go on a
salary for around twenty five thousand dollars less. Can they
do that?
Speaker 4 (08:40):
Well, it really depends on what you mean. Can they
do that? If you agree to it, yes, they can.
And if the business can't afford to have someone on
one hundred and twenty k of hourly wages, then they
could look to restructure and disestablish that role. So you know,
(09:00):
I'd be it's up to you. I'd be trying to
discuss it with the employer and try and come to
annagement that works for both sides. But yeah, potentially they
can do that as long as they follow a process.
Speaker 2 (09:13):
Great thank you for these texts. Has some great questions
every fortnight brilliant. I love to would put this question
to you, Gareth, because I'm interested in your answer. Gareth,
we work in the farming sector for quite a large company.
We are on salary with fortnite pay minimum of eighty
five hours. It says in the contract more hours are
required where necessary due to the nature of the job.
(09:34):
But my partner is working ninety five hours plus every fortnight.
We fill out a time sheet fortnightly. Is there a
point where the company needs to pay overtime in money
or loo?
Speaker 4 (09:44):
Yeah, and that all comes down to what are reasonable
extra hours. And if they're doing an extra ten hours
every fortnight or every week, I can't remember what it was.
I think you've got an argument there that that's not
reasonable extra hours from time to time. That's just a
bigger job. Yes, you could, you could certainly raise it,
(10:09):
as I always say, raise it constructively first and and
and see what the response is.
Speaker 2 (10:14):
Excellent, Good luck, Joe.
Speaker 3 (10:16):
Hello there, Yeah, but.
Speaker 2 (10:20):
Garet's listening.
Speaker 6 (10:22):
Oh Hi, I'm just wondering. I'm on Wastes at the moment,
and the company I work for is wanting me to
go on salary, but it's way below what I'm what
I'm earning nearly. Did they have any write that I
can I decline it and not not teake facility, but
that they're kind of pushing me towards it.
Speaker 4 (10:44):
Yeah, great, Christian, Joe, And it's quite similar to one
that we just dealt with earlier in the show. You
don't have to take it, but there is the risk
that they if you don't take it, they might look
at a restructure and look at disestablishing your role. Also,
depending on what the guaranteed hours are in your contract,
(11:05):
they could pretend just offer you less work, will give
you less hours, and so you'll be in the same situation.
I guess the one advantage of going on a salary
is you know how much you're going to be getting,
but that's something you've got a way up. Nope, you
don't have to take it, but there might be consequences.
Speaker 6 (11:26):
Oh, thank you very much, Thank you.
Speaker 2 (11:29):
Thanks Joe.
Speaker 3 (11:30):
Text to here says, Hi, Gareth, my husband works a
three hour weekend shift. He's on a salary, so he
doesn't get paid for it, but he does get three
hours off later in the week. Is this legal? And
also he's on the call list for the alarms because
we live nearby, but he's not on a call out rate.
Speaker 4 (11:49):
Okay, Yeah, that's some quite similar to a question we
had a few weeks back, and it really depends on
what he's agreed to. If he's agreed to that and
that's part of his hours, then there's no issue with it.
In terms of the callouts. He does need to get
compensation for that, but it's not set what the compensation
(12:11):
needs to be, so it really depends on how often,
how long. But potentially that could be.
Speaker 2 (12:19):
Fine, excellent and last one to finish, it's a curly one, Gareth,
can you please clarify if it is still a requirement
to be COVID nineteen vaccinated. Our employer is asking me
as a new employee, and I wondered how this works
now repast history.
Speaker 4 (12:36):
Yeah, it really depends on what you mean by is
it a requirement as far as I'm aware, and I
could be wrong on this, but as far as I'm aware,
there's no government requirement anymore. There's no statutory requirement, but
an employer, if they've got a reasonable basis for it,
they could have a requirement. Depends on what the business is,
(12:57):
you know. I could see a situation where I don't know,
someone works in a laboratory something like that, and they
work with highly muno compromise people something like that. It's possible, calm,
So it really depends. If it's just a run of
the mill business with no special requirements, it might be
(13:18):
seen as unreasonable.
Speaker 2 (13:21):
Gareth, it's always great talking with you in thirty seconds
or less. Our uber drivers and your view contractors or employees.
Speaker 4 (13:28):
Well, you know, I'd have to go with the Court.
Speaker 2 (13:30):
Of Appeal Chicken, Gareth, great, Thank you so much for
your time. Gareth Abdnor of course, just reminding he's director
and founder of Abdenor Law and his email address if
you want to get hold of Gareth for anything is
Abdenor Law dot Nz. That's abdenor ab d I n
(13:51):
R Law dot in z. That's the website for your
pardon abdenor law dot n Z and just reminder the
content of the segment as general in nature and is
not legal advice. Any information discussed is not intended to
be a substitute for obtaining specific professional advice, and shouldn't
be relied upon as such.
Speaker 1 (14:07):
For more from Simon Barnett and James Daniels afternoons, listen
live to News Talk SETB, 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):
We are in studio with Gareth Abden or our employment
law expert. Phones are open Tyler's standing by. Gooday Gareth,
Good day guys. Texts are already pouring in our phone
calls too, so let's crack on.
Speaker 3 (00:23):
All right, Hi, Gareth. My friend had an annual performance review.
One week after that he had a pay review and
pay was increased. Then one week after that they announced
a restructure. After feedback closed, they announced that that restructure
would proceed. They made no attempts to offer any alternative
roles in the company, and after the announced restructure would
(00:45):
go ahead, they were given their notice. We also noticed
that most staff let go were of non New Zealand origin.
Is there a potential for a PG.
Speaker 4 (00:55):
Well, I'd hate to say this, but I'm going to
say there's always potential for a PG. Yeah. It does
sound a little bit suspicious, but you've got to remember
that a restructure supposed to be about roles, not about individuals.
So I could see the possibility of someone getting a
pay rise if that individual has performed really well and
(01:17):
worked really hard and done a good job, they could
get a pay rise. And then if the company looks
at the structure and says, well, actually we don't need
that person's role anymore, that could fit. But it does
seem a little bit odd.
Speaker 3 (01:32):
The timing is a bit yeah diff time, isn't it.
Speaker 1 (01:34):
Now.
Speaker 4 (01:35):
Employers are legally obliged to look at redeployment, and so
if there are jobs that are open or vacant in
the business, they have to look at whether the person
could be redeployed to them. Of course, you know, sometimes
we see some an executive on one hundred k plus
and there's a vacancy for a laborer or a cleaner
(01:59):
on significantly lower wages. Well, most of the time they
wouldn't want that job, and finance they couldn't take that job.
So it really depends on the details.
Speaker 2 (02:11):
A lot of personal grievances coming about. This is a
lengthy text, but it's a good one. Gareth. I'm currently
undergoing a process of being constructively dismissed, mainly by having
my hours of work reduced, although there has been some
nastiness from the manager toward me as well. My contract
has my hours as between twenty five and forty five
per week. However, before I signed the contract, I made
(02:32):
my employer aware via that I require a minimum of
thirty five hours a week to meet my financial commitments.
He replied in an email with a breakdown of what
my hours of work would be, which was enough time
for me. I have worked those hours since I started
in November until the constructive dismissal started. Does my employers
promise to me in writing carry any weight if I
(02:54):
was to take a PG.
Speaker 4 (02:56):
Yes, it most probably does. There's a reasonable argument that
that email from the employer varied the contract and provided
a new minim. The other red flag is it's very
unusual to have hours of work that are such variance.
You know, twenty five to forty five. That's a huge difference.
Speaker 2 (03:19):
That's full time halftime, isn't it.
Speaker 4 (03:20):
Yeah, so that's quite unusual. The other red flag is
people often talk about constructive dismissal and they don't quite
get the concept correct. For there to be a constructive dismissal,
someone has to be dismissed. Now, they can be dismissed
by resigning because they feel like they have no option.
It sounds like this person's still working, so there's no
(03:43):
constructive dismissal. They would actually have to resign and then
claim constructive dismissal.
Speaker 2 (03:49):
Right, good distinction. Okay.
Speaker 3 (03:51):
Another text says, Hi, boys, I'm on a casual contract,
but I do the same shifts weeken and week out.
At what stage does that become a permanent position? Currently
I'm working regular hours of forty hours per week and
I have been for months.
Speaker 4 (04:08):
This is a fantastic question, and casual employment is one
of those things that employers seem to get wrong more
often than they get right. A lot of employees start
as a casual employee and then over time, like this person,
it appears their employment gets a degree of regularity, and
(04:29):
as soon as it's got that regularity and there's an
expectation of ongoing work, then they're no longer casual and
they become a permanent employee. They could be a permanent
employee with no fixed hours of work, although in this
case you kind of wonder if the hours of work
are forty hours a week, if that's what the person's
been doing for months.
Speaker 2 (04:49):
Okay, this is a fairly frank text from Scotty. He says, Gareth,
we have a guy who used to be an all
rounder in our place of work, now is refusing to
do certain tasks. If we restructure, can we get rid
of this bloke?
Speaker 4 (05:04):
Potentially you could, but it sounds to me that this
is actually more performance or a disciplinary issue. If the
work that this person used to do is part of
their role, it's arguably part of their job description, and
now they're refusing to do it, that's a disciplinary issue.
(05:25):
And you know you can issue a warning and potentially
dismiss someone if they repeatedly refuse to follow your instructions.
It's also quite likely a performance issue, and so while
you might be able to restructure them out, I often
think it's better to actually deal with the issue that
you have rather than creating another one.
Speaker 2 (05:47):
Excellent answer Jess, Hello, welcome.
Speaker 5 (05:52):
Oh hi, it's a turn.
Speaker 2 (05:53):
Yes, it's your turn. Jess, Gareth's listening.
Speaker 5 (05:56):
Oh good, Thank you very much. Look sort of a
general enquiry. My daughter and always been working in an
industry for.
Speaker 6 (06:02):
About four years.
Speaker 5 (06:05):
During the last year the change from one company. While
the company was brought out by another company around the
beginning of this year, they rewrote their contracts and took
out redundancy clauses. And said, I do not worry your
job's safe. She's currently having to reapply for her role,
So I suppose the question is in good faith, they
(06:29):
thought that the removal of redundancy was not an issue.
Now I wonder, like, if she doesn't have a job, this.
Speaker 6 (06:36):
Is an issue. I mean it will be.
Speaker 5 (06:38):
But what she misslied, I suppose to my question.
Speaker 2 (06:42):
Yeah, a couple of alarm bells there.
Speaker 4 (06:45):
Yeah, there's a lot of alarm bells there. I'm quite
concerned about your job is safe. And I guess it
depends on exactly what the employer said at the time,
is that your job is safe now or your job
is going to be safe forever. And I think relying
(07:08):
on someone saying your job is going to be safe
and thinking that's going to be forever, that that seems
a bit unrealistic.
Speaker 2 (07:16):
Can they just remove redundancy clauses.
Speaker 4 (07:18):
Only if you agree to it? Now, they can only
change an employment agreement if the other party agrees. Now,
it could be that they gave some sort of benefit
an exchange for changing that, and we often see that
where someone will get a pay rise, but company car
gets removed, our redundancy benefit gets removed, So it really depends.
Speaker 2 (07:41):
Did you know, Jess, whether your daughter got any benefits
for having that redundancy removed.
Speaker 5 (07:47):
She didn't get this benefits. There was no pay rise.
I suppose employee wondered at the time such it was
a good faith model that they were following.
Speaker 4 (07:57):
Yeah, yeah, I mean potentially got a claim. Certainly, it
looks like that could be a breach of good faith there,
so I guess you'd have to see how that restructure
played out.
Speaker 5 (08:13):
Sure, Okay, look, thanks pretty much for that. It's sort
of what I thought you might say. I mean, if
she is offered a job tomorrow, then she'll.
Speaker 4 (08:20):
Be fine, Yeah, take the job.
Speaker 5 (08:22):
Not yet, absolutely, Jess.
Speaker 2 (08:25):
Thank you for that question.
Speaker 3 (08:26):
Very good. It was Hi, guys, there's a texture. I'm
on wages around one hundred and twenty thousand dollars a year,
and my employer now wants me to go on a
salary for around twenty five thousand dollars less. Can they
do that?
Speaker 4 (08:40):
Well, it really depends on what you mean. Can they
do that? If you agree to it, yes, they can.
And if the business can't afford to have someone on
one hundred and twenty k of hourly wages, then they
could look to restructure and disestablish that role. So you know,
(09:00):
I'd be it's up to you. I'd be trying to
discuss it with the employer and try and come to
annagement that works for both sides. But yeah, potentially they
can do that as long as they follow a process.
Speaker 2 (09:13):
Great thank you for these texts. Has some great questions
every fortnight brilliant. I love to would put this question
to you, Gareth, because I'm interested in your answer. Gareth,
we work in the farming sector for quite a large company.
We are on salary with fortnite pay minimum of eighty
five hours. It says in the contract more hours are
required where necessary due to the nature of the job.
(09:34):
But my partner is working ninety five hours plus every fortnight.
We fill out a time sheet fortnightly. Is there a
point where the company needs to pay overtime in money
or loo?
Speaker 4 (09:44):
Yeah, and that all comes down to what are reasonable
extra hours. And if they're doing an extra ten hours
every fortnight or every week, I can't remember what it was.
I think you've got an argument there that that's not
reasonable extra hours from time to time. That's just a
bigger job. Yes, you could, you could certainly raise it,
(10:09):
as I always say, raise it constructively first and and
and see what the response is.
Speaker 2 (10:14):
Excellent, Good luck, Joe.
Speaker 3 (10:16):
Hello there, Yeah, but.
Speaker 2 (10:20):
Garet's listening.
Speaker 6 (10:22):
Oh Hi, I'm just wondering. I'm on Wastes at the moment,
and the company I work for is wanting me to
go on salary, but it's way below what I'm what
I'm earning nearly. Did they have any write that I
can I decline it and not not teake facility, but
that they're kind of pushing me towards it.
Speaker 4 (10:44):
Yeah, great, Christian, Joe, And it's quite similar to one
that we just dealt with earlier in the show. You
don't have to take it, but there is the risk
that they if you don't take it, they might look
at a restructure and look at disestablishing your role. Also,
depending on what the guaranteed hours are in your contract,
(11:05):
they could pretend just offer you less work, will give
you less hours, and so you'll be in the same situation.
I guess the one advantage of going on a salary
is you know how much you're going to be getting,
but that's something you've got a way up. Nope, you
don't have to take it, but there might be consequences.
Speaker 6 (11:26):
Oh, thank you very much, Thank you.
Speaker 2 (11:29):
Thanks Joe.
Speaker 3 (11:30):
Text to here says, Hi, Gareth, my husband works a
three hour weekend shift. He's on a salary, so he
doesn't get paid for it, but he does get three
hours off later in the week. Is this legal? And
also he's on the call list for the alarms because
we live nearby, but he's not on a call out rate.
Speaker 4 (11:49):
Okay, Yeah, that's some quite similar to a question we
had a few weeks back, and it really depends on
what he's agreed to. If he's agreed to that and
that's part of his hours, then there's no issue with it.
In terms of the callouts. He does need to get
compensation for that, but it's not set what the compensation
(12:11):
needs to be, so it really depends on how often,
how long. But potentially that could be.
Speaker 2 (12:19):
Fine, excellent and last one to finish, it's a curly one, Gareth,
can you please clarify if it is still a requirement
to be COVID nineteen vaccinated. Our employer is asking me
as a new employee, and I wondered how this works
now repast history.
Speaker 4 (12:36):
Yeah, it really depends on what you mean by is
it a requirement as far as I'm aware, and I
could be wrong on this, but as far as I'm aware,
there's no government requirement anymore. There's no statutory requirement, but
an employer, if they've got a reasonable basis for it,
they could have a requirement. Depends on what the business is,
(12:57):
you know. I could see a situation where I don't know,
someone works in a laboratory something like that, and they
work with highly muno compromise people something like that. It's possible, calm,
So it really depends. If it's just a run of
the mill business with no special requirements, it might be
(13:18):
seen as unreasonable.
Speaker 2 (13:21):
Gareth, it's always great talking with you in thirty seconds
or less. Our uber drivers and your view contractors or employees.
Speaker 4 (13:28):
Well, you know, I'd have to go with the Court.
Speaker 2 (13:30):
Of Appeal Chicken, Gareth, great, Thank you so much for
your time. Gareth Abdnor of course, just reminding he's director
and founder of Abdenor Law and his email address if
you want to get hold of Gareth for anything is
Abdenor Law dot Nz. That's abdenor ab d I n
(13:51):
R Law dot in z. That's the website for your
pardon abdenor law dot n Z and just reminder the
content of the segment as general in nature and is
not legal advice. Any information discussed is not intended to
be a substitute for obtaining specific professional advice, and shouldn't
be relied upon as such.
Speaker 1 (14:07):
For more from Simon Barnett and James Daniels afternoons, listen
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