Employer Employment Law

In the light of the current statue and case law, describe the duties of an employer and the rights of an employee where a dismissal on the ground of redundancy is contemplated.

In the case of dismissal on the ground of redundancy, the obligations of employers and the rights of employees depend on the terms contained in the employment such as when the procedure and criteria in for redundancy has been expressly or impliedly mentioned (Clarke v. Norske Skog Tasman Limited [2003] AC 42/03. Usually, there is an employee protection provision that sets out the considerations and processes that employers and employees should comply with in case the issue of dismissal due to redundancy arises. In considering the process to follow, employment agreements, policies and rules, and previous practices of the company help. Part of the contract could be a provision for the giving of notice to the employee in the form of a formal letter, verbal communication, or payment. The reasonable period of notice depends on the length of service and position of the employer as well as the financial situation of the employer. Another provision could be the giving of compensation and other benefits to the affected employees.

However, in case there is no such term or the terms are unfair or incomplete, the Employment Relations Act 2000 provides that both employer and employee should exercise good faith in relation to the matter. This means that the employer has to have genuine reasons for dismissing an employee on grounds of redundancy such as site relocation (NZ Post Office Union v. NZ Post Ltd [1990] 3 NZILR 913) or technical redundancy. Dismissal due to redundancy should be a last option and alternatives such as redeployment, when reasonable, should receive preference. There should also be consultation and notification of employees affected, fair and justifiable selection criteria for rendering positions redundant, and fair or reasonable compensation or other benefits for people affected depending on the context of the employment relations. In addition, employees have the right to file a claim for unjustifiable dismissal.

• Discuss the principles on which the Discuss the principles on which the Wages Protection Act 1983 is based and their application is based and their application.

A number of principles support the Wages Protection Act 1983. One principle is equality. The basic provision of an employer and employee relationship, which is also an element of the employment contract, is the exchange of benefits between the parties, with the employee offering knowledge, skills and experience in performing tasks in exchange for the employer’s payment of compensation. The Wages Protection Act 1983 promotes equality by ensuring that employers compensate the contributions of employees in line with the contractual provisions on the amount, the mode of payment, and the period of payment. By preventing employers from changing the contractual provisions on wage amount, mode of payment and period of payment or influencing the spending or allocation of wages, employees do not feel an undue pressure from the employer that could create in imbalance in the contractual equality of the parties. In the case of inequality, the employment relationship could give rise to opportunities for abuse especially on the part of the employer by gaining in upper hand relative to the employee.

Another principle underlying the Wages Protection Act 1983 is the basic freedom or liberty of employees to exercise their property rights. Employees receiving compensation, in the context of a fair exchange in the employment relations, own their money so that they have the sole discretion to allocate their property. Undue influence from the employer constitutes infringement of property rights and freedom of employees. In addition, changing the value, mode and period of payment without justifiable reason also constitutes and impingement into the property rights of employees.

The Wages Protection Act 1983 also finds basis on employee protection. The sanctity of contracts already ensures the compliance of the parties of the contractual terms such as amount of compensation, mode of payment, and schedule of payment. However, statute also provides for employee protection especially extending to vulnerable workers to prevent discrimination or unfair treatment. Part of the application of employee protection is the exercise of the necessary regulation of the employer-employee relations to prevent opportunities for abuse and address abusive practices to ensure mutual and fair benefit for employers and employees.

• In Grover v. Southland Engineering Holdings [1982] A.C.J. the Court of Appeal described the Arbitration court as being “a specialist kind of tribunal with a specialized knowledge in industrial relations” and as occupying a “somewhat unusual position which is recognized by Parliament.” Analyse these propositions and their continued force or otherwise with respect to the Employment Relations Authority and the Employment Court.

Also, compare the relative roles and functions of the Employment Relations Authority and the Employment Court (150 words)

The Arbitration Court came about because of the Industrial Relations Amendment Act 1977. This combined the jurisdiction of the defunct Industrial Commission as well as Industrial Court. As such, it also combined the previous experience and knowledge of these two bodies specializing on issues and policies involving industrial relations. As an integrated body and due to its specialization on industrial relations, the Arbitration Court has been able to derive specialized insight into various industrial relations issues arising in different circumstances enabling it to become a source of input on policies covering industrial relations and dispute resolution guidance in the settlement of industrial relations conflicts. The members of the Arbitration Court comprise the direct nominees coming from both sides of the employee relations, through the Employers Federation together with the Federation of Labour. This means that the Arbitration Court also taps into both the perspectives of the employers and employees in the resolution of disputes resulting to solutions likely acceptable to the both parties for a long-term impact. In addition, the Arbitration Court also presided in a number of single-sector tribunals such as the State Services Tribunal.

Created by the Industrial Relations Amendment Act 1977, the Arbitration Court had the combined jurisdiction of the former Industrial Commission and the Industrial Court. The Court’s structure continued to comprise direct nominees from the Employers Federation and the Federation of Labour. The Court also presided over many single-sector tribunals including the State Services Tribunal. The title and role of Chief Judge was established for the first time.

• Collective employment agreement talks between the Engineers Union and Chathams Polytechnic break down and the union gives notice that 2 weeks thereafter, no overtime will be worked by its members on Mondays and Tuesdays until the employer increases its present pay offer to a general increase of 6%. (A secondary reason for the overtime ban is the employer’s refusal to become a party to a new multi-employer agreement with several other polytechnics). The notice is given 5 weeks after the existing collective employment agreement has expired. The polytechnic management responds by notifying the staff who are participants in the industrial action that work will not be made available to them whilst the overtime ban is in effect. The Union considers its members have been locked out. Management then:

• Arranges for other staff not members of the Engineers Union to carry out the duties of the union members

• Issues notices to the engineers union members demanding their individual agreement to a full resumption of duties (including overtime as required) within 7 days and 2 week later dismisses those workers who fail to comply with employer’s demand.

Personal grievance applications are commenced by the union on behalf of the dismissed workers. Give your opinion as to the law of relevance to the various issues arising.

• Explain the employee’s common law duty of fidelity and good faith.

• The objects provision of Part 5 (collective bargaining) of the Employment Relations Act 2000 states that its purposes is “to provide the core requirements of the duty of good faith in relation to collective bargaining.” Explain the meaning of the concept of “good faith” in this context

• Describe the circumstances in which a strike or lockout may be lawful under the Employment Relations Act 2000. Note: Question does not require you to discuss the definitions of a strike or lockout.

• S.143 of the Employment Relations Act provides, in part, that the legislation is about establishing procedures and institutions that:

• Recognize that judicial intervention at the lowest level needs to be that of a specialist decision-making body that is not inhibited by strict procedural requirements and

• Recognize that difficult issues of law will need to be determined by higher courts

Explain with reference to the role and function of the Employment Relations Authority and the Employment Court how these principles are given effect to.

• Outline the law regarding the status and standing of a union under the Employment Relations Act including with respect to their rights of access to work-places.

• Discuss the law relating to the formation of the employment contract/agreement. Include in your answer appropriate reference to both:

• the law of misrepresentation in the employment contract and

• the relevant provisions of the Employment Relations Act 2000

• With reference to the so-called statutory codes of minimum conditions, to what extent is there a “safety net” for employees in New Zealand?

• “It is not possible in any meaningful sense to analyse the employment relationship as purely a private contractual relationship between two parties.” Discuss the above statement in light of the external influences which affect the relationship. Consider the extent to which the Employment Relations Act intrudes on the private contractual relationship.

“The law implies or incorporates some provisions into every employment contact.” Discuss the above statement considering the source, nature and effect of implied terms. (3