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Employment in a primary industry is often governed by seasons, weather,
customary practices and other particular terms and conditions specific
to an industry.
EMPLOYMENT LAW - SOME ESSENTIALS
Pre-employment Critical Issues
A thorough employment process is
essential to avoid or reduce the risk of employing the wrong person.
Checklist:
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Ensure you advertise widely and in
the appropriate publications.
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Screen the applicants and ensure
that each applicant completes a job application form provides you with
a CV and references.
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When you interview each applicant,
have a standard set of questions and write the answers down.
Standardised questioning keeps the applicant providing you with
information and gives you a basis for comparison.
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Check referees and prior
employers/farm consultants.
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Shortlist the applicants and make
your final selection. Send your offer of employment with an
employment agreement. Two copies, one for you and one for them.
Remember all employment agreements are required to be in writing.
Issues coming out of the
pre-employment process:
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Undisclosed prior injury effecting
job performance.
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False claim of skill or
qualification.
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Disputes regarding payment for
additional work.
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Recurring health problems.
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No work permit.
Unless you have requested disclosure
of these issues pre-employment, an employer may have difficulty in
dismissing an employee who subsequently discloses their deficiencies -
or they become obvious.
During Employment - Reviews
Both Human Resource research and
anecdotal evidence confirms that there is an existing and growing
shortage of skilled and willing agricultural employees.
After recruitment, it is very
important to develop your staff and to review their employment
regularly.
Employers who do not identify issues
to employees (and fail to issue them with warnings), will have
difficulty justifying taking any subsequent disciplinary action. The
review process helps to identify issues for both the employer and
employee.
Disciplinary Process
Contrary to popular belief upskilling,
warning and dismissing employees is remarkably straightforward.
Steps:
-
Identify
the issues and gather information.
-
Request
the employee attend a meeting and tell the employee what the issues
to be discussed are.
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Offer
the employee the opportunity to have a support person with them at
the meeting.
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At the
meeting,
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Give
the employee all the information and ask the employee to respond
to the issues raised.
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Listen
carefully.
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Consider the response.
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After
the meeting, either issue a warning in writing (or if summary
dismissal, dismiss the employee), or at the meeting, tell your
employee that you are satisfied with their explanation.
-
If a
warning is issued make it clear what you expect for the future,
provide assistance for improvement and make a clear statement that
further warnings may lead to either another warning or dismissal,
depending on your procedure.
-
Two
warnings issued within a reasonably close time frame are usually
considered a minimum for dismissal on notice.
-
If
another issue arises, repeat the process. If there are three
occasions for a meeting, dismissal rather than a warning may
occur.
-
If
possible, have someone else attend a disciplinary meeting with
you.
Summary dismissal or dismissal
without notice is reserved for those instances where the employee has
destroyed the trust and confidence of the employer. Theft, violence,
unauthorised use of the employer’s property contrary to instructions,
serious breaches of health and safety policies leading to a serious
injury, deliberate and repeated refusal to carry out instructions are
examples of serious misconduct but in each case it is a question of
degree. In all circumstances, the disciplinary steps in 1 to 4 above
should be taken to avoid any misunderstanding or unfairness before an
employee is dismissed without notice.
“Usually what is needed is conduct
that deeply impairs or is destructive of that basic confidence or trust
that is an essential of the employment relationship.”
Northern Distribution Union v. BP Oil NZ Limited [1992] 3ERNZ483
The two requirements of a justified
dismissal are:
Failure in either of these areas
could lead to a claim for damages and loss of wages.
Why are employment disputes so
frustrating for employers?
-
The disputes take a lot of time to
resolve. Letters, mediation, enquiry.
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Seventy five percent of cases
involve damages awards (excluding lost wages) of less than $5,000.
Many settle at mediation between $2,000-$3,000.
-
This is a two edged sword, as
employers often find it more economical to settle claims rather than
win their case.
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It is critical for a successful
mediation (or to avoid any action) for the proper procedures and
evidence to be kept.
Redundancy
There are two aspects that need to be
considered in relation to redundancy. The first is the genuineness of
the redundancy and the second the procedural elements.
Employers must recognise that it is
the position and not the person which is redundant.
Genuineness
A redundancy arises when a position
that is filled by an employee becomes superfluous to the needs of an
employer. A position or role is made up of a bundle of duties and
obligations or functions. Consequently redundancies car arise in two
broad situations:
Procedure
In Bagular v Coutts Cars Limited, the
Employment Court applied a “common sense” approach, that has largely
been adopted by the Court of Appeal. These take into account:
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An employer’s business
requirements.
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An employee’s right to relevant
information.
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An employer’s ability to mitigate
the blow to the employee.
-
Employment relationships call for
good faith, at a minimum “employers ought to be candid, reasonable,
honest and forthright with their employees.” Good faith qualifies
the way dealings are to be conducted.
In applying these principles an
employer can reasonably be expected to postpone a commercial decision
for a short time, long enough to accommodate relevant factors. These
factors will usually include some real dialogue with the employee
starting with the provision of accurate information. The timely
provision of information is evidence of a fair employer. The purposes
of this dialogue is so the employer can find out what would cause the
“greatest havoc to the employee in order to try and avoid it”. This
does not mean the employer has to seek the employee’s agreement.
The following steps will generally
achieve a successful redundancy process, however, some of these steps
may not be required and the particular detail of each step will depend
on the circumstances:
-
Notice of Proposal: Notice
should be given of any proposed change, accompanied with sufficient
information setting out the reasoning for the change.
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Consultation: Consultation
is “desirable if not essential, in most cases” but is not an
absolute requirement. It is not necessary in mass/large scale
redundancies or where there is great urgency. There was also a
suggestion that the degree of consultation required may be dependent
on the level of the employee. The employer and employee (or union)
should enter into constructive dialogue about the proposed changes.
Employees (and unions) should be given a reasonable timeframe to
consult depending on the circumstances and urgency of any proposed
changes.
-
Selection (if applicable):
If there is a possibility of a number, but not all, of identical
positions becoming redundant a selection criteria should be
considered. The employer has a wide discretion so long as the
criteria are lawful and relevant. However the criteria should be
communicated to the employees for an opportunity to comment and
address them in an interview.
-
Alternatives to Termination:
Once a redundancy has been decided upon, the issue then becomes
whether there are any alternative positions within the same business.
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Notice of Termination: This
will be a contractual notice or in the absence of a contractual notice
what is reasonable.
Employment Agreements - Some
Variables
Casual Employment
By and large this is an arrangement
where someone is employed on an hourly or daily basis and the employment
can be terminated by either party on an hour’s or a day’s notice. There
is no need to give such an employee a reason for their dismissal. Where
someone works for prolonged periods for whole weeks they may lose their
casual employee status. Many seasonal pickers are casual employees.
Temporary Employment
Temporary employees who are employed
to complete work during a defined period to fill a vacancy can be
treated as temporary employees.
Temporary employees are entitled to
similar rights to employees who are employed full time.
Fixed Term Employees
Fixed term agreements can be entered
into provided there is a genuine reason for the specific term and the
employee is told the reason for the specific term. Examples of when
fixed term contracts can be used are: calving, lambing, harvesting,
mustering periods, specific projects such as irrigation installation, or
fencing a specified area.
Continuous Employment
There is a presumption at law that
employment is continuous employment for employees. A permanent part
time or full time employee enjoys all the protections contained in the
Employment Relations Act 2000.
Issues for an agricultural employer
Agricultural employers have operated in a very informal manner over a
long period. However employees have become very aware of their rights
and employers who do not maintain good systems can find their relaxed
attitude to be an expensive one.
Apart from the normal employment terms, there are a number of issues
employers need to take care of. A proper job description and house rules
that capture the specific terms of your job should be provided. There
should be a specified maximum number of hours to ensure compliance with
the minimum wage requirements. The employer is required to keep an
accurate wage, time and holiday record. It is important to plan and
document both annual and statutory holidays. Employees provided with
accommodation should have a residential tenancy, with clear notice
provisions. Agreements should be clear as to whether they are fixed term
or continuous. Responsibility for equipment, safety training, OSH
requirements skills and study leave should also be incorporated into
your employment agreement.
Industry Issues
Each industry has specific requirements due to the type of work
involved. A list of the specific issues are:
Forestry:
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Piece rates and statutory minimum wage provisions.
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Chainsaw, equipment, clothing requirements and allowances.
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Deductions for equipment costs.
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Travelling time and transportation to work.
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Drug and alcohol testing and investigations.
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Equipment and safety guidelines.
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Forest closure.
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Weather conditions and work availability.
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Reworks and quality control.
Drystock
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Provision of working dogs and dogfood.
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Weekends off.
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Houses, bikes, farm equipment and allowances and animal grazing
provisions.
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Use of fuel and farm machinery.
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Residential tenancy agreement where accommodation is provided.
Dairying
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Clear guidelines on hours of work and days off, especially during
calving and mating.
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Residential tenancy agreement where accommodation is provided.
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One employee, one agreement. Not husband and wife employment
agreement.
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Animal grazing provision.
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Use of fuel and farm machinery.
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Provision of equipment such as a four wheeler and allowances.
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Grades, poor animal health and employee illness (ie: lepto).
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Production targets and bonuses. No cow death bonuses.
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Fixed term or continuous.
Equine
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Animal welfare and treatment.
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OSH - safety training - accident avoidance.
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Flexible work hours.
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Travel to race venues.
Horticulture
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Hygiene during harvesting.
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Harvesting procedures.
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Production targets and piece rates.
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Equipment safety.
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Picking ladders, harvesting equipment, provision of employee
equipment and protection of employer’s equipment.
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Casual, fixed term or continuous.
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Weather conditions, work availability, wet weather gear.
Employers’ Employment Package
We offer a very effective employment package that includes interview
questions, individual contracts, disciplinary procedures, review
procedures, house rules and health and safety guidelines. The cost is
$400 plus GST, updated annually. Contact us for enquiries.
Employment Newsletters
To view a newsletter, please click the link below:
May 2006: Kiwisaver,
Minimum Wage Amendment Bill, Employment Relations Amendment
Bill
March 2006: Protection of
Employees on the Sale of a Business, Contractor or Employee?,
Mileage, Holidays
Please refer to our
disclaimer.
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