In accordance with section 114 of the Employment Relations Act, every employee who wishes to raise a personal grievance must raise the grievance with his or her employer within the period of 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is the later, unless the employer consents to the personal grievance being raised after the expiration of that period.

Case Volunteer Employee Intending Work

Volunteers are expressly excluded from the definition of “employee” by s 6 of the Employment Relations Act 2000. A volunteer worker is not an “employee” because some form of hire or reward must be present. However, if a worker is working as a “volunteer” in order to get a job then the worker falls within the definition of “employee” because he or she is a person intending to work. If the volunteer is in reality an employee then he or she is entitled to bring a grievance for an unjustified dismissal.

Important Payroll 1 April 2013

For the pay period beginning 1 April 2013 or after, there are some important payroll changes employers need to be aware of. These changes are summarised below:

Case Penalty Imposed Failure Provide Meal Breaks

Employees of the Bay of Plenty District Health Board claimed they have not been provided with a meal or rest break in accordance with sections 69ZD and 69ZE of the Employment Relations Act 2000 and applied to the Employment Relations Authority for the imposition of a penalty on the employer for breach of the Act.

Case Remedy Failure Pay Kiwisaver Contributions

Compensation for the loss of the benefit of an employer’s contribution to an employee’s KiwiSaver account can be claimed but the Employment Relations Authority does not have jurisdiction to order an employer to make KiwiSaver contributions to an employee’s fund. That being the case, when an employer fails to make the required KiwiSaver contribution, employees should bring a personal grievance against the employer and claim a remedy for loss of a benefit rather than ask the Authority to order the employer to make the payment.

Disciplinary Reminders

Never take a prepared letter into a disciplinary meeting as it shows complete pre-determination of the outcome, which could result in an unjustified dismissal.  The only exception to this is during a 90-Day Trial Period in which case it is OK to bring a prepared letter confirming the dismissal.  For more information on the correct disciplinary process, contact the office.

Appeal Allowed Calculation Holiday Pay

In issue were the provisions pertaining to “relevant daily pay” that were in force before 1 April 2011. Though the Court deliberately refrained from commenting on how its decision might affect interpretation of the post-1 April 2011 provisions, the strong similarity of those provisions should certainly make this case of interest to those whose workers have elements of remuneration that they do not invariably receive.

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