Bell Gully – Tim Clarke, Partner and Liz Coats, Senior Associate – As the end of year holidays approach, employers and employees look forward to celebrating 2015 and taking time off to rest and enjoy New Zealand’s summer weather. Although it is a time for celebration and looking forward to the year to come, it can also be the “silly season” when it comes to employment law issues. Some of the common issues that can arise at this time of year are summarised below.
Christmas party incidents
Christmas parties are an important opportunity for colleagues to socialise together and celebrate a year of hard work. However, the mix of alcohol and reduced inhibitions can lead to a number of employment relationship issues including sexual harassment, bullying or violence, and other types of misconduct.
A classic example of Christmas party behaviour resulting in dismissal is Townsend v Prospace Designz Limited (Employment Relations Authority, 2005). Mr Townsend was dismissed just before Christmas for, amongst other things, his behaviour at the Christmas party. Mr Townsend had responded to being splashed (playfully) with water and ice by deliberately “dunking” the employee who had splashed him into the party drinks bucket, which was filled with ice. The other employee had resisted Mr Townsend’s actions and as a result had suffered bad scrapes to his legs and an injury to his shoulder.
Although Mr Townsend’s dismissal was found to be unjustified for procedural reasons, the Authority halved the remedies awarded to him on the basis of his contributory actions in assaulting his colleague, which the Authority considered would have been serious enough to justify summary dismissal if a proper process had been followed. The Authority said that it could not condone such actions, even though they took place in a social context after work hours.
Employers should consider steps that they can take in advance of Christmas parties in order to reduce the risk of an incident arising. This might include sending an email to staff beforehand which sets out expectations of behaviour and reminding staff of any relevant policies.
Where an incident does occur at a Christmas function, employers should be mindful to investigate the issues thoroughly and not rush any decision as to whether the incident amounts to misconduct or serious misconduct, or whether disciplinary action is justified. Employers should also consider any relevant policies before embarking on any investigation process.
Host responsibility at Christmas parties
As an employer, you have health and safety responsibilities to your employees and others. At Christmas parties where alcohol will be offered, employers should remember their host responsibilities – at a minimum, this means providing sufficient food and non-alcoholic drinks, not serving alcohol to intoxicated persons, and ensuring that any person who is intoxicated is provided with a way to get home safely.
For further information about your responsibilities as a host, the Health Promotion Agency’s website www.alcohol.org.nz contains a number of fact sheets and advice for workplaces.
Public holidays
Employees who are required to work on a public holiday are entitled to be paid the greater of:
- the portion of the employee’s relevant daily pay or average daily pay that relates to the time actually worked on the day, less any penal rates, plus half that amount again; or
- the portion of the employee’s relevant daily pay that relates to the time actually worked on the day including any penal rates.
The only time that an employer can choose to use average daily pay to calculate an employee’s pay for working on a public holiday is when it is “not possible or practicable” to determine relevant daily pay. In practice, average daily pay is likely to be used most often where an employee’s pay varies over the pay period in question. If that day would otherwise be a working day for the employee, they are also entitled to an alternative holiday.
If an employee is working a shift that includes some time on a public holiday, only the time actually worked on the public holiday will qualify for the time and a half payment. However, the employer and employee may agree to transfer the public holiday so that it covers one whole shift.
This season Boxing Day and 2 January will fall on Saturdays, which means that section 45 of the Holidays Act will come into play. Under section 45, if a public holiday over Christmas and New Year falls on a Saturday and the day would otherwise be a working day for an employee, the public holiday must be treated as falling on that day. If a public holiday falls on a Saturday and the day would not otherwise be a working day for the employee, then the public holiday must be treated as falling on the following Monday (i.e. 28 December and 4 January respectively).
Seasonal staff
Christmas and New Year is “peak season” for some employers, who are required to engage additional employees on fixed term or casual employment agreements to keep up with customer demand. Care should be taken to ensure that new employees are employed on the appropriate type of agreement, and that the minimum statutory requirements for that type of agreement are satisfied.
If the employee is to be used consistently throughout the season but will not be required once the season is finished, a fixed term employment agreement is likely to be the most appropriate contract. In this situation, the employment agreement itself must state: when the employment agreement will end (i.e. on a particular date or at the end of a particular project or season); the reason why the employment will end then; and the way in which the employment will end.
However, if the employee is only to be engaged on an “as and when required” basis and there is no expectation of work from one engagement to the next, then a casual employment agreement is likely to be the most appropriate contract.
Thinking ahead
As with many employment issues, forward planning for these issues should help to avoid any incidents and ensure that it is a happy holiday season. If you have any questions regarding these issues, please feel free to contact us for more specific advice.
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