Employers and employees commonly enter into employment agreements that will take effect when the employee commences work at some later date. Once the agreement is made that person is intending to work and will have enforceable rights.

Particularly in certain occupations, offers of employment are often made on the basis that satisfactory pre-employment checks, such as Police checks, are received. A recent Employment Court decision highlights the importance of completing those pre-employment checks before employment commences.

Towards the end of 2020, Mr Edwards was looking for new employment opportunities. He had several meetings with Mr Justin Soong, who was the Chief Technology Officer for Laybuy. Mr Edwards was verbally offered employment with Laybuy by Mr Soong, who also advised him that there would be some pre-employment checks to go through.

Mr Edwards was then sent documents including a letter confirming the conditional offer of employment, a copy of an individual employment agreement already signed by Mr Soong, and a consent form for pre-employment checking (which included consent to a police criminal check).

In the letter, Laybuy advised that should it not be satisfied with the results of the checks, the offer could be withdrawn. The individual employment agreement did not contain any conditions regarding pre-employment checks.

Mr Edwards then had a conversation with the HR manager and told her of various matters that were likely to show up on his police criminal check. He said he had not advised the company of these matters sooner as he was not explicitly asked. The HR manager advised Mr Edwards that when the checks were received, the results from the police criminal check would be escalated within Laybuy for consideration.

The police criminal check came back. That check confirmed the matters Mr Edwards had mentioned to the HR manager. The next day, the HR manager called Mr Edwards and advised him that the offer of employment was withdrawn because of the outcome of the police criminal check.

A letter confirming the withdrawal of the offer was sent to Mr Edwards on 12 January 2021. Mr Edwards then emailed Laybuy advising that, as his contract required him to start at work the following Monday, he wanted to make it clear that he was not abandoning his employment and was awaiting further instruction on what to do on the morning of Monday 18 January 2021.

Laybuy further replied, saying that there was no employment relationship entered into between Mr Edwards and Laybuy and no requirement for him to attend the Laybuy office as the offer of employment had been withdrawn.

The Employment Relations Act includes an extended definition of “employee” to include “a person intending to work”. A person intending to work “means a person who has been offered, and accepted, work as an employee”. The Act does not define the words “offered” or “accepted”.

The Employment Relations Authority determined that as the offer of employment was conditional, and as the conditions attached to the offer were not fulfilled or waived by Laybuy, there was never a completed offer and acceptance. That meant that Mr Edwards was not a person intending to work and was not covered by the Act and could not bring a personal grievance claiming that he was unjustifiably dismissed.

On appeal to the Employment Court, Judge Holden took a different approach. She said the Act departs from a strictly contractual approach to employment, and its emphasis is on the relationship between the parties. Where parties have not yet begun to act on that relationship, the only thing tying them together is any understanding or agreement between them. If one or both of the parties do not intend to be bound by that understanding or agreement, it seems implausible to describe the situation as an “employment relationship”, giving rise to the rights included in the Act, including the right to bring a personal grievance.

The Judge concluded that the letter from Laybuy advised Mr Edwards that he would only be employed if it was satisfied with the results of the pre-employment checks. If it was not satisfied, then if Mr Edwards had not started work, the offer would not proceed – it would be withdrawn. Laybuy’s withdrawal of the offer made it clear that it did not intend to be bound to employ Mr Edwards even though Mr Edwards had accepted the employment agreement.

Unfortunately, some pre-employment checks (such as police checks) can take some time to come through. It is not uncommon for the person to start work before the business receives the check. This judgment makes it clear that if Mr Edwards had indeed started work, the employment relationship would have been established and he would be entitled to bring a personal grievance claim – a much harder scenario for Laybuy to extricate itself from. Read more....

The recently appointed Chief Executive, Janice Smith, of the South Wairarapa District Council might well be wondering if she has made the right decision in accepting her appointment.

SWDC mayor, Martin Connelly, said the council is pleased to have appointed Mrs Smith, who “has a proven track record of leading and managing in changing and challenging environments in senior management positions”. The mayor said he is confident Mrs Smith will be a good fit for the council and the South Wairarapa community.

Mrs Smith will be the most recent appointment in a fairly constant turnover of recent Chief Executives. There have been a growing number of council staff resignations, with a reported attrition rate of 22 percent and a rumoured settlement with the hasty departure of the previous Chief Executive.

Earlier this year two district councillors lodged a letter of complaint alleging that the mayor breached his duties under the council’s code of conduct by publicly criticising council employees with his comments in a newspaper article saying “the real issue here is that our officers did not start the annual plan process in good time”.

Councillors Martin Bosley and Alistair Plimmer​ said that it was in fact the mayor that was largely to blame for the rushed process as “almost four months were wasted in changing the committee structure” as directed by the mayor.

The councillors said that the Council had been repeatedly advised by senior staff of the risks such action would have on the annual planning process, but that concern was either overruled or ignored by the mayor. “By effectively now blaming the staff of causing the time pressures and subsequent effects, the mayor has sought to remove any blame from himself and his actions, in causing the very situation we have now found ourselves in.”

Somewhat unusually, an independent report was commissioned by senior management at the council for the Employers and Manufacturers Association to look into the issues outlined in the complaint. The Report conclude that the mayor had breached the council’s Code of Conduct and recommended that Mr Connelly publicly apologise to staff. The mayor has declined to do so.

More recently, all the district councillors took drastic action and held a unanimous vote of no confidence in the mayor last month.

The councillors have written an open letter to the mayor after the meeting, claiming the mayor had been dismissive towards some community members and absent from several important meetings. "We are writing to you collectively to express our concerns, voice our expectations, and provide advance consideration of potential actions should our expectations not be met," the councillors said.

As the mayor is elected by the district, the unanimous vote is largely symbolic. Nevertheless, the then Minister of Local Government said he was aware of the issues with the South Wairarapa District Council. He said the Department of Internal Affairs was the appropriate authority to provide support for the council at this stage and that “I have asked them to approach the council and talk to them”. He also said a no confidence vote in a mayor was unusual in New Zealand, but that the situation was not serious enough to warrant the dismissal of the council and the installation of a commissioner.

Local Government NZ has also been called in to advise on resolving the differences in the council. President Sam Broughton confirms that LGNZ is aware of the issues. "We are supporting South Wairarapa District Council to put effective governance structures in place to meet the community’s expectations.”

Mrs Smith, as Chief Executive, is the principal administrative officer of the district council and is appointed by the council. In business terms, the council is the governance body setting strategy and overseeing its implementation. The Chief Executive leads the management of the business, implementing the strategies to achieve the outcomes approved by the governance body. The council is the Chief Executive’s employer.

Typically, the Chief Executive works very closely with the mayor. Good faith and trust and confidence lie at the heart of the employment relationship. With the current divide between the mayor and the councillors, the new Chief Executive is going to have her work cut out just trying to get grips over whether she should follow instructions from the mayor or the councillors.

If Mrs Smith follows the mayor’s instructions she may find herself offside with the councillors and called to account by the majority. If she follows contrary instructions from the councillors, her working relationship with the mayor becomes untenable. If she follows neither faction, who will hold her to account?

Mrs Smith may indeed need to demonstrate all her skills in “leading and managing in changing and challenging environments”. While at present the situation has not become as publicised as the Gore District Council’s, it has the potential to do so. Read more....

Last weekend the Wairarapa Garden Tour was again held as a major fundraiser for the Pūkaha National Wildlife Centre, allowing the centre to continue its conservation work in its 940 hectare native forest reserve north of Masterton. Like a lot of fundraising events, it is supported by a dedicated team of volunteers who make the event work so successfully.

Tūao Aotearoa Volunteering New Zealand, reports that using information from Statistics New Zealand’s latest quarterly Labour Market Statistics that:

• Approximately 21.5% of New Zealanders undertake formal volunteer work. 
• The value of formal volunteering is estimated at $4 billion per annum.
• New Zealanders contribute a total of around 159 million hours of formal volunteer labour each year. 
• 11.8% of New Zealanders undertake informal volunteering work, contributing a further total of 7.8 million hours of volunteer labour per year to these figures. 

While this important work usually benefits society generally, it does have some challenges that need to be managed or the relationship between the “employer” and the “volunteer” can quickly become blurred.

The Employment Relations Act excludes a volunteer who does not expect to be rewarded and receives no reward for the work performed as a volunteer. “Reward” is a broad concept that can include intangible or non-monetary benefits. It has lead to some outcomes that at least one of the parties to the arrangement did not expect.

For example, in Hicks v Great Lake Aluminium and Glass Ltd, the “worker” was invited to the company’s Friday night food and drinks. When the company told him that he was no longer required this was enough to be considered a “reward” and enabled the “worker” to claim that he was entitled to wages and had been unjustifiably dismissed.

In The Salad Bowl Ltd v Thornley, Amberleigh Howe-Thornley was told at her interview that there was no reason why she would not be hired if she satisfactorily completed a three hour work trial. During the trial she was provided with a salad and this was considered to be sufficient to amount to a “reward”.

In another case, in Labour Inspector v Alpine Motor Inn and Café the “worker” was in New Zealand on a student visa which allowed her to work up to 20 hours a week. She applied for a housekeeper position. The employer intended to employ her full-time and could not do so while she was waiting for a work visa to arrive. In the meantime she was given accommodation and food and began to perform some work. The employer said that the “worker” was a volunteer who worked because she was bored. The Employment Relations Authority was not convinced and found that the food and lodging amounted to a “reward”.

If the parties want a volunteer relationship, it is important that they make it clear that the worker does not expect payment and does not receive payment. Otherwise, the worker may claim to be an employee. If the worker is successful in their claim they will be entitled to minimum entitlements; they will have to be paid minimum wage and cannot be dismissed unless it is justified.

Even if it is clear that the parties are in a volunteer relationship, the organisation should nevertheless be mindful that it may still have other “employer” type obligations to the volunteer. The Health and Safety at Work Act covers some volunteer workers, as does the Human Rights Act in respect of discrimination.

In the case of the Wairarapa Garden Tour volunteers, they receive a free t-shirt which identifies them as officially associated with the event. They are also given free access to the gardens on the tour. Such “freebies” could easily amount to a “reward” if the worker claimed that they expected to get rewarded for their work.

International Volunteer Day is an international event and is celebrated every year on 5 December. The purpose of the day is to recognize and support the spirit of volunteerism to help create a better future. It champions the impact volunteers have in communities, nationally and globally. 

Thankfully, it is rare that volunteers in genuine volunteer positions challenge the relationship. The unpaid work done by many New Zealander’s often goes unrecognised. A big shout out to our volunteers – they help make New Zealand a better place to be! Read more....

New Zealand awaits the election outcome following the counting of special votes and the impact this may have on the formation of our new coalition government.

For years, tikanga Māori has increasingly been recognised by our courts and legislation. The most recent significant case was the Supreme Court decision on whether Peter Ellis, under tikanga (the customary rules which govern Māori life), would have a right to clear his name or re-establish his mana, even if dead. In Māoridom, mana and reputation carries on in whakapapa, rather than an individual's life.

The Act Party, as part of its election policy platform, has said that it would hold a binding referendum on the introduction of a Treaty Principles Act. It says that this Act would affirm that the New Zealand Government has the right to govern New Zealand, and that all New Zealanders are equal under the law, with the same rights and duties. The Act Party says the referendum is a “bottom-line” for it.

The Employment Court has recently affirmed that tikanga is important when an employer is considering dismissing an employee.

Carey Robinson was employed by Pact Group as a community support worker for 15 years. Her role involved supporting clients to live as independently as possible within the community. The job was varied, as were the needs of each of the clients Ms Robinson worked with. Ms Robinson was well regarded and received positive performance reviews over the years. No issues had been raised in any aspect of her work.

In 2021 Pact Group embarked on a restructuring exercise which impacted on Ms Robinson. Ms Robinson was required to complete additional training in respect of the administration of medication. This required her to be in the office early and she had difficulty with this as she provided daily care for her elderly mother before she started work. She also reported experiencing a high workload as she had been trying to catch up with all of her clients since the most recent lockdown and had been attempting to complete the medication requirements outside her rostered hours. Ms Robinson reported that “this has been a huge juggle for myself and my clients.”

Unbeknown to Ms Robinson, this was reported up the line to Mr Cardy, the company’s General Manager based in Dunedin. Ms Robinson’s comment that “this has been a huge juggle” prompted him to look into Ms Robinson’s work, including the records from Ms Robinson’s work phone and the GPS records on her work vehicle.

Mr Cardy wrote to Ms Robinson explaining that he had undertaken a review of her current workload and that as a result he had concerns as to how she was spending her work hours. Mr Cardy advised Ms Robinson that if his suspicions were correct, it would lead to the conclusion that she was falsifying time records and making fraudulent claims for payment. He advised Ms Robinson that dismissal was a possible outcome. He required Ms Robinson to attend a meeting to be conducted virtually via Zoom.

Unsurprisingly Ms Robinson was shocked to receive Mr Cardy’s correspondence. She asked to meet with Mr Cardy in person to discuss matters. The request for an in-person meeting was refused.

At the Zoom meeting Ms Robinson reiterated that she had wanted to meet in person, and said that the way in which Mr Cardy had dealt with matters had left her feeling “stripped of her mana, culturally disadvantaged, and that this mishandling of her mana had resulted in feelings of shame.” She also touched on her personal circumstances, including that she was the carer of her mother and that she was herself suffering from a health condition.

Ms Robinson said that unfair made assumptions were being made that she was not working when she was not with a client or driving during the work day. She pointed out that there were numerous other tasks that she was required to attend to, including engaging with stakeholders and attending to arrangements to provide support to her clients in order to meet their complex needs.

The company dismissed Ms Robinson for serious misconduct, with immediate effect.

In reaching its decision that Ms Robinson was unjustifiably dismissed, the Employment Court also concluded that Ms Robinson’s personal circumstances and her cultural needs were relevant.

Ms Robinson alerted the company during the Zoom meeting that she had caregiver responsibilities to her mother (who suffered from dementia and required daily care). Ms Robinson also referred to being impacted by health issues of a personal nature which she felt embarrassed about discussing in the context of a disciplinary meeting conducted via Zoom.

Mr Cardy did not request further information as to the personal challenges Ms Robinson was evidently confronting, either during or following the meeting. Judge Inglis said that it was his obligation as a fair and reasonable employer to take steps to ensure he had the relevant information before reaching any concluded view.

Also relevant was the fact that Ms Robinson is Māori and had raised during the first Zoom meeting that her mana was being impacted by the process. The Judge said that there was nothing to suggest that these concerns were seriously considered or factored into the way in which the company proceeded. The Judge said that the process was hurried and conducted in a distanced, impersonal way that undermined, rather than maintained, Ms Robinson’s mana.

The Judge also referred to Utu, “the action undertaken in reciprocity”, and its link to mana. To show and reciprocate generosity enhances mana and strengthens relationships, whereas the failure to give or receive utu diminishes the mana of both parties to the relationship. Ms Robinson gave evidence that she felt as though her treatment by the company failed to reciprocate the care, empathy and consideration she was expected to bring to her own role within the company.

While there may have been legitimate reasons to discuss the perceived concerns with Ms Robinson, Ms Robinson was a long serving employee and was well regarded. It must have been shocking for her to receive the request to the disciplinary meeting from Mr Cardy and for the company to proceed as it did. Reciprocity is a good starting point; after fifteen years loyal service the company should have engaged in a process that maintained Ms Robinson’s mana.

It seems unlikely that such a concept under tikanga will have any traction under the Act Party’s platform to establish a Treaty Principles Act. It will be interesting to see to what extent this is explored in the National/Act coalition agreement coming up and whether a referendum will be agreed to.  Read more....