EMPLOYMENT LAW QUESTIONS AND ANSWERS

EMPLOYMENT LAW
QUESTIONS AND ANSWERS
The 2018 New Zealand Employment Law Guide clearly explains the laws that govern employment
relations — including the duties and obligations of employers and employees, employment
agreements, working hours and remuneration, termination, disputes and grievances, health and
safety, discrimination and privacy.
The guide is also updated with key decisions of the Employment Court and the Employment
Relations Authority from 2017 to help illustrate how the courts are applying the law in practice.
The following is a selection of employment law questions and answers based on recent judgments.

2018 NZ EMPLOYMENT LAW GUIDE HR AND EMPLOYMENT COLLECTION

2018 New Zealand Employment Law Guide

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EMPLOYMENT LAW QUESTIONS AND ANSWERS

Compensation Top-up
Q: Accident Compensation pays 80% of earnings. Can an employee recover the remaining 20% from the
employer for work-related injuries?

A: Until the Sentencing Act was amended in 2014, the 20% difference could not be recovered. An injured person
can now seek the “top-up” as part of reparations ordered in criminal proceedings. The District Court ordered a
company and its director to pay $226,300 for future loss of earnings to an employee who became a tetraplegic
after being injured by agricultural equipment.
WorkSafe New Zealand v Wai Shing Ltd [2017] NZDC 10333 | New Zealand Employment Law Guide 2018 15.11.6

More information on Accident Compensation can be found in chapter 15.11 - Health and Safety at Work | Accident Compensation

Employment Premiums and Bonds

Q: Is it an unlawful premium for employment if an employer requires a qualification — which it provides
tuition and requires payment for — to be acquired before employment?

A: It depends partly on who benefits from the prospective employee obtaining the qualification. A person
who was offered and accepted employment subject to completing a flight instructor training course was
unsuccessful in establishing that the fees, which were deducted from his salary, amounted to a premium. The
Employment Court found that the prior condition for employment had been the obtaining of the qualification,
not the payment of the fees. And the payment was for something of substantial benefit to the prospective
employee over and above the immediate obtaining of employment.
Holman v CTC Aviation Training NZ Ltd [2017] NZEmpC 60 | New Zealand Employment Law Guide 2018 4.6.9

More information on Contents of Employment Agreements can be found in chapter 4.6 - Employment contracts and agreements | Contents
of employment agreements

On-call: Is this “work”?

Q: What are the minimum wage implications for persons who are “on call”?

A: This will vary according to the circumstances. The Employment Court recently applied the tests used in the
“sleepover” cases to the situation of anesthetic technicians who, when they were on call, had to be at the
hospital they worked at within ten minutes of the call-out. It concluded they were working while they were on
call. The reality was that, to be available for particular call-out periods, they had to stay away from their homes
in hospital-provided accommodation. Their services were essential to the provision of emergency services and
to the DHB meeting its statutory obligations.
South Canterbury District Health Board v Sanderson [2017] NZEmpC 127 | New Zealand Employment Law Guide 2018 4.2

More information on What is work? can be found in chapter 4.2 - Employment contracts and agreements | What is work?

Acting on information not in the public domain

Q: An employer finds out that an employee has been in court for conduct occurring in her private life which
might have serious implications in the workplace. The employee has got name suppression in the criminal
proceedings. Can the employer act on its knowledge even though the name of the employee is not in the
public domain?

A: A security guard, who had appeared in court for willful damage and assault in a domestic context, was
unsuccessful in his appeal to the Supreme Court for the dismissal of his disadvantage proceedings. The
employer, a university, had suspended the employee while it investigated the matter and then decided to issue
a final written warning.

2018 New Zealand Employment Law Guide

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 EMPLOYMENT LAW QUESTIONS AND ANSWERS

The Employment Court considered that the disclosure to a small number of people within the university, all with
a genuine interest in the situation, and the university’s actions thereafter were those of a fair and reasonable
employer. The Court of Appeal considered that the security guard had breached his duty of good faith in not telling
his employer that he was facing criminal charges. Most recently, the Supreme Court agreed with the Court of Appeal
that the university had not breached the suppression order.
ASG v Hayne, Vice-Chancellor of the University of Otago [2017] NZSC 59 | New Zealand Employment Law Guide 2018 12.5.17.

More information on Grounds for Dismissal can be found in chapter 12.5 - Dismissal for cause | Grounds for dismissal

Workplace bullying and stress

Q: Emma entered her manager’s office for her performance review. Before she had even closed the door, her
manager started a diatribe about her and her work performance, saying that no one could stand working with her
and that she seemed incapable of operating certain work equipment. Emma felt acutely stressed. Might Emma have
remedies against her employer?

A: In a case with some similarities to this situation, the Employment Relations Authority noted that, while employers
have a right to raise concerns about performance, they must take reasonable steps to protect employees’ health
and well-being. Instead, the employer had engaged in bullying behaviour. A fair and reasonable employer could
be expected to have a clear, transparent and supportive performance process. The employer was found to have
unjustifiably disadvantaged the employee, and also to have unjustifiably dismissed her after her medical absence for
stress.
Ewing v Waimea Weekly Ltd [2016] NZERA Christchurch 193 | New Zealand Employment Law Guide 2018 12.5.16 & 15.9.1

More information on Work Stress can be found in chapter 15.9 - Health and safety at work | Specific risks to health and safety

New Zealand Employment Law Guide by Richard Rudman

The New Zealand Employment Law Guide is packed with practical information on all aspects of
employment relations and the workplace and will keep you up to date with the requirements of
over 20 employment law statutes. It is an essential guide for employers, employees, managers, HR
and ER specialists, lawyers and anyone involved or interested in this dynamic field of law.

Five reasons to get the latest guide:

User-friendly – allows you to quickly Real-life – reports recent case law to illustrate
find information and answers on specific how employment law is interpreted and applied
January 2018 employment issues in practice.
$88.00 (plus GST) Current – the new edition is based on the law in
Comprehensive – clearly outlines the
effect at 1 January 2018
SAVE 15% requirements of key employment legislation

Practical – helps readers to understand and

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Also by the same author, HR Manager – A New Zealand Handbook is the perfect companion to
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2018 New Zealand Employment Law Guide

books.wolterskluwer.co.nz | nz-cchbooks@wolterskluwer.com | 0800 500 224