COML203 Exam Notes PDF

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Employment Law 1 Notes from Miller - Chapter 12 (487-513) Outline of the law of employment Employment - “the contractual relationship between employer and employee: a contract of service.” (Miller) Contract for services - “(1) In contracts for services, the provider of the service is an independent ...

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Employment Law 1 Notes from Miller - Chapter 12 (487-513) Outline of the law of employment Employment - “the contractual relationship between employer and employee: a contract of service.” (Miller) Contract for services - “(1) In contracts for services, the provider of the service is an independent contractor, such as an accountant, a builder, a consultant, a surgeon, a landscape architect, or other consultant. (2) The Consumer Guarantees Act 1993 states the minimum standards that apply to contracts for the supply of services, which are: guarantee as to reasonable care and skill; guarantee as to fitness for a particular purpose; guarantee as to time of completion; and guarantee as to price.” (Miller) Contract of service - “ Employment contracts are legally termed ‘contracts of service’, denoting a very different relationship from that used in phrase ‘contracts for services’, provided by independent contractors.” (Miller) Independent contractor - “ A person who undertakes work for another under a contract of services. An employer is not vicariously liable for the actions of his or her independent contractor. Independent contractors are not defined in the Employment Relations Act 2000, but the distinction between an employee and an independent contractor is important for matters of tax, ACC payments, holiday pay, minimum wages, dismissal grievance procedures, and vicarious liability in tort.” (Miller) Classification of ‘workers’: Citizens of New Zealand can be classified as: those who work for reward, otherwise known as employees; those who are ‘self-employed’, otherwise known as independent contractors; those who have worked and now retired; those who are too ill to work; those who are too young to work; and the unemployed ( in this context, work means a situation where a person is ‘gainfully employed’). Employment Agreements Lecture The Employment Relationship Employees or Contractors? Employee - “ Section 6 of the Employment Relations Act 2000 defines an employee as being any person of any age employed by an employer to do any work for hire or reward under a contract of service, and includes a homeworker and a person intending to work, but excludes voluntary workers”. Employer - “Section 5 of the ERA, a person employing any employee or employees; and includes a person engaging or employing a homeworker”.

ERA, s 6 Meaning of employee (1) In this Act, unless the context otherwise requires, employee— (a)means any person of any age employed by an employer to do any work for hire or reward under a contract of service; and (b)includes— (i)a homeworker; or (ii)a person intending to work; but (c)excludes a volunteer who— (i)does not expect to be rewarded for work to be performed as a volunteer; and (ii)receives no reward for work performed as a volunteer; and (2)In deciding for the purposes of subsection (1)(a) whether a person is employed by another person under a contract of service, the court or the Authority (as the case may be) must determine the real nature of the relationship between them. (3)For the purposes of subsection (2), the court or the Authority— (a)must consider all relevant matters, including any matters that indicate the intention of the persons; and (b)is not to treat as a determining matter any statement by the persons that describes the nature of their relationship.

Basic difference between contract for service and contract of service: ● An employee-employer contract is a contract of service - employee does business for the employer. ● whereas, ● A contractor-client contract is a contract for services - an independent contractor who is self employed is given a fee for his/her services to carry out on an assigned project. Examples of an independent contractor: an accountant, builder, consultant, tutor, architect, photographer.

Bryson v Three Foot Six Ltd [2005] 3 NZLR 721 Summary of case - a decision made by the Supreme Court of New Zealand regarding the real status of a worker, whether they were regarded as a employee or an independent contractor.

Substance over form: ◦ Intention of the parties when entering employment relationship ◦ Control/independence test ◦ Integration test ◦ Fundamental or economic reality test ◦ Accepted industry practice (where relevant)

◦ Totality of the relationship • In Bryson? Bryson v Three Foot Six Ltd [2005] NZLR 721 Bryson worked with weta and was transferred to Three Foot Six in 2000, and was given a contractor contract, and in 2001 he was fired for no reason. Bryson complained this was an unfair dismissal. Substance over form: - The intention of the parties when entering employment relationship - Control/independence test (Employees are controlled, whereas contractors are independent) - Integration test (if you are an employee, you are very integrated into the workplace, you work on site, have lunch there, typically 9-5 style job, whereas a contractor you work in different locations every day. - Fundamental or economic reality test. (are they economically separate from the employers) - Accepted industry practice (where relevant) - The totality of the relationship (it will never be fair/one-sided, you have to weigh all of the factors to see where it falls) - In Bryson case? - The court ruled that he, in fact, was an employee, he worked on site, they paid his tax and was very much treated like an employee. - Due to forces to keep the hobbit filmed in NZ special film production law.

ERA, s 6 (d)excludes, in relation to a film production, any of the following persons: (i)a person engaged in film production work as an actor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musician, dancer, or entertainer: (ii)a person engaged in film production work in any other capacity. (1A)However, subsection (1)(d) does not apply if the person is a party to, or covered by, a written employment agreement that provides that the person is an employee.

The Employment Arrangement ●

Offer - Acceptance - Consideration ( elements required to create a valid simple contract) p.g. 113

Common law rules of contract, P.g. 494: 1. Presumption that there is serious intention to create a legal relationship 2. At some point, both parties become bound by a contract, this is however when one of the parties has made an offer and the other has accepted the offer. This offer made is the foundation of the contract of employment. Either parties may be the offeror ( person/party who makes the offer) or offeree (person/party who either accepts or does not accept offer). The role of offeree and offeror can change depending on negotiations. 3. Consideration is obvious. This means that the required work in return for payment, either money

or its equivalent ( payment into worker’s bank account). 4. Both employer and employee are unlikely to be affected by capacity problems, except in the employment of young persons. 5. Contracts of employment may be invalidated by common law provisions relating to mistake or misrepresentation by either parties. 6. Illegality of an actual employment type contract is a possible but unlikely issue.

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Collective Agreement Individual contract Consideration: work < > wages Duties (where and when) Notice, dismissal, redundancy, resignation Fixed term/permanent/casual/temporary Must be in writing ( s 65)

Implied terms of a contract; these terms involve mutual obligations from both parties within the employment relationship. The employer owes duties to: pay wages, provide safe working conditions, refund employees for expenses incurred on the employers behalf and act in the manner reflected in the ERA, in good faith. Whereas, the employee owes duties: off attendance, to obey all lawful instructions, to exhibit reasonable care and skill and to show fidelity (that is honesty and loyalty). Latter duty involves such matters as employer confidentiality, and not harming the employer’s interests in general; e.g. by secret competition, or by using or selling trade secrets (Miller, 497). Individual Contracts: ● ● -

Cannot contain Anything contrary to law Anything contrary to the ERA ( s 238 No contracting out the provisions of this Act have effect despite any provision to the contrary in any contract or agreement) Can contain Probationary period

Employment Process: ● ERA? ● Fair Trading Act 1986, s12: ● Misleading conduct in relation to employment No person shall, in relation to employment that is, or is to be, or may be offered by that person or any other person, engage in conduct that is misleading or deceptive, or is likely to mislead or deceive, as to the availability, nature, terms or conditions, or any other matter relating to that employment.

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Human Rights Act 1993, s 22:

Employment (1)Where an applicant for employment or an employee is qualified for work of any description, it shall be unlawful for an employer, or any person acting or purporting to act on behalf of an employer,— (a)to refuse or omit to employ the applicant on work of that description which is available; or (b)to offer or afford the applicant or the employee less favourable terms of employment, conditions of work, superannuation or other fringe benefits, and opportunities for training, promotion, and transfer than are made available to applicants or employees of the same or substantially similar capabilities employed in the same or substantially similar circumstances on work of that description; or (c)to terminate the employment of the employee, or subject the employee to any detriment, in circumstances in which the employment of other employees employed on work of that description would not be terminated, or in which other employees employed on work of that description would not be subjected to such detriment; or (d)to retire the employee, or to require or cause the employee to retire or resign,— by reason of any of the prohibited grounds of discrimination. (2)It shall be unlawful for any person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment differently from other persons in the same or substantially similar circumstances by reason of any of the prohibited grounds of discrimination. Unions: Union: “ The Employment Relations Act 2000 does not define the term union except to refer union as being a ‘society entitled to be registered as a union’, which ‘may apply to the Registrar of Unions to be registered as a union under this Act’. Unions may be described as comprising of employees who may join voluntarily with the purpose of acting collectively to negotiate with employers.” (Miller) Why do we have/allow unions? - Unions allow employees to come together as a collective to approach their employer who oftentimes holds a powerful position. Unions allows employees to collectively speak out about concerns and issues to their employer and discuss and bargain options, not as individuals but as a group. This limits the power of the employer to an extent when unions are formed. Membership: ERA 2000, s 11 Undue influence. Collective bargaining: the negotiating process of getting a collective agreement for a group of employees. Strikes and Lockouts What is a strike: is the withdrawal of employees services, in whole or in part, on the basis of a combination, agreement, common understanding or concerted action between the employees. What is a lockout: is the act of an employer in closing its place of business or suspending or discontinuing

business, or breaking employment agreements, with a view to compelling employees to accept terms of employment or to comply with other demands made by the employer. Are they lawful? - p.g. 502 Responsibilities and Duties Employers must: ● ● ● ● ● ● ●

Act in good faith (ERA, s 4) and with honesty. Provide a safe workplace (HSWA - Health and Safety at Work Act 2015) Pay employees - as per their contract; and At least the legal minimum wage (MWA - Minimum Wage Act 1983) Do not deduct money from wages unlawfully (WPA - Wages Protection Act 1983) Give the day off on 11 public holidays, or Give at least 4 weeks of annual holidays (HA, s 16) (Holidays Act 2003); 5 days of sick leave per year (HA, s 5) and 3 days of bereavement leave (HA, s 69)

Minhinnick v NZ Steel Ltd [2016] NZERA Auckland 335 Man wins case over being refused bereavement leave after foster brother’s death. The worker won this case, after being refused bereavement leave to attend the funeral of his foster brother. NZ Steele has been ordered to pay the employee $1000 after they told him, he couldn’t take the three day bereavement leave on the grounds that it wasn’t his real brother. Employees must: ● ● ● ● ● ● ● ● ●

Go to work at the agreed time Do what their employer asks them to do… Use their skills and knowledge and personal characteristics to do their work Do their work with care Behave reasonably Act in good faith (ERA, s 4) Show fidelity Duty of trust and confidence Keep yourself and others safe when you are at work (HSWA, s 40)

End of the Relationship End of Arrangement ● -

Employer cannot unilaterally terminate contract, unless Within probationary period (ERA, s 67) Justified dismissal (with cause) (whilst employees may resign, an employer cannot dismiss the employee without providing reason to justify it. ‘Dismissal for cause’ can include misconduct, misrepresentation, negligence, breach of loyalty and poor work performance. In some cases, dismissal without a warning can be justified on the grounds that the misconduct was serious enough to dismiss employee.)

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Employee breaches contract (grounds for dismissal) Frustration of contract (generally no fault of either party, where one of the party can no longer meet the obligations under the agreement. Examples can be outbreak of war, death of employer or employee, sickness/injury with little or no chance of returning within a period. Employee no longer required (redundancy) Under technical redundancy, employees have the right to not be transferred to the future/replacement employer. Employees have the right of continuing their job when the business is restructured. Part 6A of the ERA ensures that employees under a specific category can continue their job in the restructured business. Under genuine redundancy, the procedure must be carried out fairly and with sensitivity. Expiry of fixed-term agreement (some employment agreements include a fixed-term expiry date, where the agreement will end on the date agreed, which means there is no dismissal or redundancy. However, there must be ‘genuine reasons’ as to why there is a fixed term date which must be explained to the employee before he/she agrees to it, this must also be in writing including the fixed date, reasons why the date is in place.) Employee can resign, giving and working-out notice.

Redundancy: two types: (1) ‘technical redundancy’- when it is caused by the restructure of the employers business. This means the employer may sell or transfer the entire or parts of the business to another. In this case the two options for an employee are; redeployment - accepting a different role with different duties with same employer. The second option is that the employee is offered the same role with same duties as his previous job with a different employer (new owner of business). (2) ‘genuine redundancy’ when the employer no longer has any work available for the employee. This type of redundancy must be discussed with employee outlining genuine reasons behind this decision. Cf. contractors cf.(comparison)

Unjustified Dismissal: ERA, s103A (1)For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by applying the test in subsection (2). (2)The test is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred. (3)In applying the test in subsection (2), the Authority or the court must consider— (a)whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and (b)whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and (c)whether the employer gave the employee a reasonable opportunity to respond to the employer’s concerns before dismissing or taking action against the employee; and

(d)whether the employer genuinely considered the employee’s explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee. (4)In addition to the factors described in subsection (3), the Authority or the court may consider any other factors it thinks appropriate. (5)The Authority or the court must not determine a dismissal or an action to be unjustifiable under this section solely because of defects in the process followed by the employer if the defects were— (a)minor; and (b)did not result in the employee being treated unfairly.

Disputes

Breach of Employment Agreement ● ● -

I.e. breach of contract Explicit terms of contract Implied terms of contract Compensation for Breach of Employment Agreement (ERA, s 135) Up to $10,000 against an individual Up to $20,000 against a company

Personal Grievance: ERA, s 103 ● ● ● ● ● ● ●

Unjustifiable dismissal Employee is disadvantaged by some unjustifiable action by the employer Discrimination during employment (ERA, s 104; HRA 1993, s21) Sexual harassment during employment (ss 108 and 117) Racial harassment during employment (ss 109 and 117) Duress in relation to membership or non-membership of a union or employees organisation Employer has engaged in adverse conduct for a prohibited health and safety reason

Remedies ●

ERA, s 123 Remedies for Personal Grievances

(a) reinstatement of the employee in the employee’s former position or the placement of the employee in a position no less advantageous to the employee: (b) the reimbursement to the employee of a sum equal to the whole or any part of the wages or other

money lost by the employee as a result of the grievance: (c) the payment to the employee of compensation by the employee’s employer, including compensation for— (i) humiliation, loss of dignity, and injury to the feelings of the employee; and (ii) loss of any benefit, whether or not of a monetary kind, which the employee might reasonably have been expected to obtain if the personal grievance had not arisen:

• Recommendations to prevent it happening again (ERA, s 123(1)(ca)). • If sexual or racial harassment found, recommendation of how the perpetrator should be dealt with (ERA, s 123(1)(d)). Breach of Good Faith • Penalty. Introduction to Torts What is a ‘tort’? - a tort is a civil wrong that causes someone to suffer loss or harm that may be done by one person to another or to another’s property. A tort is a civil wrong, meaning it is different from criminal wrongs. A result of a tort leads to legal liability for the person who committed the tort. The liability to pay compensation in the form of ‘unliquidated damages’- that is damages which cannot be predetermined in amount. ‘Types’ of Torts Negligence: property or financial loss Nuisance: to the occupier of land Trespass: to person, goods or land Defamation: of a person’s character Miscellaneous: conversion, detinue, deceit (civil fraud), passing off, Rylands v Fletcher, malicious prosecution, inducement of breach of contract, intentional physical harm. The above range of torts are ones that are legally recognised, however there are forms of harm for which there is no tort liability. General requirements: - Wrongful act - That breaches a duty, obligation or responsibility - (that results in a harm) “Tortfeasor” - person who commits the tort “Tortfeasance” - act of committing...