Ways to Manage a Remote Workforce

If you operate a business that requires your employees or yourself to be mobile or work remotely from home, then you may be familiar with the unique challenges this can present.

With the advanced technology available; companies cutting back on expensive office space and overheads; employees demanding more flexible working arrangements and wasted hours spent sitting in traffic jams in some cities, the increase in mobile or remote workers has increased dramatically.

While some businesses are embracing this shift to more flexible working, others are more wary about what this would mean for productivity, accountability and overall staff performance. How do they reach employees in an emergency? How do they measure output? How much time is spent watching soap operas instead of working?

So to manage your employees remotely, accurately measure their performance and ensure they comply with company policies etc, here are some ways to create a good working employment relationship with your remote workers without compromising on productivity or profitability.

Firstly you need to measure what’s important. It is too difficult to manage something you can’t measure. GPS software allows managers to record, in real-time, vehicle activity details. This doesn’t mean you look over the driver’s shoulder every minute of the day but it does allow you to record important data like start and stop times, the number of jobs completed, idle time and maybe even speeding violations!

You will also need to really communicate well. This doesn’t mean stalking them every minute of the day but it does mean you need to find an easy way for you and your employees to communicate when necessary. Cell phones, CB radios, Smart Phones, Skype are all established and successful methods.

Next you will need to change your way of thinking to concentrate on outputs not activities. Flexible working changes the dynamics of management. You can no longer fixate on controlling what an employees’ day-to-day activities are. Instead step back and look at the big picture. What are the objectives that need to be achieved? Communicate the agreed objectives and leave them to work out how they can accomplish those goals. Have trust in them that they will use creativity and initiative to achieve the desired outcomes, or ask for help if they need it.

How much do you think you will you need to change especially if you’ve been used to a more hands-on management style, or been a ‘micro manager’? There is no doubt that some change will be required from you so be prepared for that and set the example for your employees.

Trust is going to be the most important aspect of this change. You need to give your staff the benefit of the doubt, extending trust until they show they’re undeserving of it. Reward the positive behaviour expected but ensure there are consequences for behaviour that doesn’t reach the standard required.

Finally, remember that technology will never replace you as a manager, but you can use it to complement your management of them. Make use of on-line meeting tools like Skype or instant chat to keep the communication lines open and contact with your employees easier than ever before. Web-based software for recording timesheets, sending and receiving e-mails, or monitoring staff location can be valuable tools to keep track of your employees if there is a requirement to do so.

So are you ready for your work force to work from Mars? It’s only an 18 month response time!

Modernising Parental Leave

The Employment Standards Legislation Bill which came into effect on 1 April 2016 brings some changes to Parental Leave, including:

  • Parental leave payment period extended to 18 weeks
  • Parental leave payment extended to non-standard workers and those who have recently changed jobs
  • Entitlements extended to a wider range of permanent arrangement carers with primary responsibility of a child under 6 years
  • Unpaid leave can be taken flexibly within the first year
  • Introducing “Keeping in Touch” hours of work – for example to do training, hand overs and ease back into work
  • Extending unpaid leave to workers who have been with their employer for more than six months but less than 12
  • Allowing workers to resign and still receive payments
  • Increasing penalties for fraud
  • Providing additional parental leave payments for parents of preterm babies

Some of the above requires certain eligibility criteria be met and some are by mutual agreement with the Employer, so it pays to communicate your plans. To read more about the changes and to find out the details about leave entitlements and criteria visit one of these sites:

Ministry of Business, Innovation & Employment

IRD

Fair & Productive Work Places

The 1 April 2016 legislative changes also address the zero hour contracts and includes changes to hours of work commitments and what employers can expect from employees and aims to increase certainty for both parties.

When the employer and the employee agree to hours of work, those hours must be stated in the employment agreement including the number of hours, start and finish times or the days of the week the employee will work. The employer and employee do not have to agree on hours but when they do it must be recorded in the employment agreement.

Employers are now prohibited from the following practices:

  • Not committing to any hours of work, and expecting employees to be available when required
  • Expecting employees to be available above their agreed hours, without reasonable compensation. Employers are not obliged to offer, and employees are free to decline, work that is above the agreed hours.
  • Requiring employees to be available, without a genuine reason based on reasonable grounds
  • Canceling a shift without reasonable notice or reasonable compensation to the employee. Notice period and reasonable compensation must be agreed and stated in the employment agreement. If the employee has commenced their shift or if reasonable notice period or compensation is not recorded, the employee is entitled to what they would have otherwise earned for that shift.
  • Putting unreasonable restrictions on secondary employment of employees. Reasonable ground for restriction could be related to risk of loss to the employer of knowledge, property or reputation or to prevent a real and unmanageable conflict of interest.
  • Making unreasonable deductions from employees’ wages. Employees must now consent to deductions from wages. Deductions to cover losses caused by a third party through breakages or theft may be unreasonable.

Employer’s Decision to Dismiss Upheld by Employment Relations Authority

The case background

A Wanganui care worker with almost 30 years’ experience was sacked when a frail and elderly man she looked after claimed he felt “unsafe, neglected and scared” by her.

The man says the worker, Tuahine Hansen, would order him to make her cups of tea and do housework.

Mrs Hansen claims the complaints were untrue and the man and his housemate were coerced into making her look bad. She argued she was unjustifiably dismissed and sought compensation for lost wages, hurt and humiliation.

However, the Employment Relations Authority upheld Mrs Hansen’s dismissal from her role as a community support worker for Idea Services.

She had worked for the service for nine years and for IHC for 19 years before that.

For the 15 years until her sacking last year, Mrs Hansen provided support to two people in a Wanganui home, owned by the man who made the complaints and referred to by the authority as Mr A.

“The allegations made by Mr A, who was described by Ideas Services as frail and elderly, were that he felt unsafe, neglected and scared at times due to his treatment from Mrs Hansen,” the authority decision says.

“Specific allegations he had made were that Mrs Hansen sat on the couch and called him out of his room to make her cups of tea, that she made him do housework which he found very difficult, and that he was scared to ask her to hang the sheets out. If he did, she had a ‘go’ at him.”

When her employer, Dallas Barns, Area Manager, Idea Services, investigated, Mrs Hansen accused another support worker who did shifts at the house of coercing Mr A and the other man who lived there into making her look bad.

She denied other allegations against her.

The other worker, Heather McDonnell, said she had known for a couple of years something was not right at the house and Mr A was initially reluctant to talk about his problems regarding Mrs Hansen.

Mrs Hansen, whose employment file showed evidence of warnings and performance issues, was dismissed.

Mrs Hansen’s representative Alaska Dobbs questioned the adequacy of Idea Services’ probe and said there were dangers in relying on statements made by “vulnerable people who were easily influenced”.

Employment Relations Authority member, Trish MacKinnon, said she ”did not believe Ms Barns reached her decision lightly and I accept that she acted as a fair and reasonable employer is required to do”.

Mrs Hansen’s claim to have been unjustifiably dismissed failed and her application was dismissed.

 Measured and Methodical Process:

Authority Member MacKinnon said she was satisfied that a comprehensive and fair investigation into the complaints was undertaken and that the process was conducted in a “measured and methodical” fashion.

Once the complaint was raised Idea Services wrote to Mrs Hansen informing her of the allegations and asking her to a meeting to respond to the allegations. The outcome of the meeting was that a disciplinary investigation would be carried out. Mrs Hansen was informed that due to the seriousness of the allegations, dismissal was a possibility.

Following exploration of other alternatives, Mrs Hansen was placed on paid suspension for safety reasons.

The investigation was carried out with notes of those meetings provided to the Authority.

As a result of the investigation, further allegations were put to Mrs Hansen in another letter and a further meeting scheduled. After that meeting Ms Barns re-interviewed the complainants, reviewed Mrs Hansen’s personal file, reviewed all options open to her and wrote Mrs Hansen another letter.

This letter said a tentative decision had been reached, what it was and that no final decision would be made until Mrs Hansen had had the opportunity to respond to the tentative conclusion and the possibility of dismissal. That opportunity was given in the next meeting.

After hearing from Mrs Hansen and her supporters, the meeting adjourned.

When it reconvened Ms Barns informed Mrs Hansen she had listened to what had been said but her trust and confidence in Mrs Hansen had gone. She explained the reasons for this and informed Mrs Hansen that she would be dismissed with two weeks’ pay in lieu of notice.

Ms MacKinnon was satisfied that a comprehensive and fair investigation into the complaints was undertaken and that the process was conducted in a measured and methodical fashion. At all times Mrs Hansen had support staff available to assist her. Where necessary, timeframes for meetings were extended to allow for unforeseen events. Ms MacKinnon was also satisfied that the matters Mrs Hansen raised during the process were genuinely considered and that Ms Barns did not reach her decision to dismiss Mrs Hansen lightly. Ms MacKinnon accepted that Ms Barns acted as a fair and reasonable employer is required to do.

Conclusion:

The Authority will look closely at the process followed – it pays to ensure you follow a measured and methodical investigation and disciplinary process.

Minimum wage increase

The Government announced that the adult minimum wage will go up by 50 cents to $15.25 an hour from 1 April 2016.

The starting-out and training hourly minimum wages rates will also increase from $11.80 to $12.20 per hour from 1 April 2016.

Paid parental leave increases to 18 weeks

Paid parental leave will increase from 16 to 18 weeks in April. To be eligible for this increase, the baby must be due or born on or after 1 April 2016.

If you have pregnant employees due on or after 1 April, who intend to take parental leave, check they’re aware of the:

  • increase in the length of payments
  • form they need to complete and send to IRD

If they’ve already applied and their due date is on or after 1 April, IRD will make sure they receive 18 weeks of payments. If their baby is due before 1 April but arrives late, they need to let IRD know so they can pay the correct entitlement.

When a Resignation is a Resignation

This Employment Relations Authority case is based on a sad set of background facts, but demonstrates when an employer can deem a resignation as exactly that.

Corrine Tribe had only been working for her employer for four weeks when she was diagnosed with cancer, advised her tongue would need to be removed and other tissue transplanted to replace it – her treatment and recovery period was expected to be a year. Two days after receiving this news Ms Tribe emailed her employer with the following:

“Whilst I would dearly love to hope that the job would be there for me I appreciate that a business cannot be run like that and that you probably need to move on, cut your losses and employ someone new,” …”I am concerned that my ability to speak clearly, whilst not hindering the job itself, may make it difficult for a new employer to take a chance on me so if it was at all possible for me to keep in touch with the hope of anything that may come up at JSC I would be very grateful.” Ms Tribe also asked what was the best day for her to finish.

The employer asked her to confirm her resignation in writing, however Ms Tribe refused. The company determined the email was a resignation, and replaced Ms Tribe with a new employee. To the employer’s surprise, a month later, Ms Tribe arrived at their offices asking about returning. The company advised her there was no position and subsequently Ms Tribe raised a personal grievance, claiming the email was sent during a highly emotional period and should not have been accepted as a resignation. She described herself as feeling that she did not know ‘which way is up’ at the time.

However, the Authority noted Ms Tribe did not write the email immediately after she received the devastating news but after reflection over two days. The Authority found that her email was sufficiently clear and unequivocal and therefore the employer was entitled to conclude Ms Tribe had resigned. Ms Tribe was ordered to pay the employer $3000 in costs.

Resignations are not always clear, and we would advise caution if there is the possibility of doubt. Any resignation given in the heat of the moment should be provided with a cooling off period, and we recommend any communication is best followed up in writing and notes taken.

This employment information is supplied by Chapman ER – www.chapmaner.co.nz

Health & Safety Law update

Update kindly provided  by Chapman ER.

The Health and Safety at Work Act 2015 has been passed into law and will come into effect on 4 April 2016.

WorkSafe NZ want to see a 25% reduction in NZ’s workplace serious injuries, illnesses and fatalities by 2020. If Australia’s improvements are any indication on what we might expect, given our new legislation is based on Australia’s law, this goal may be achievable as a report released in July 2014 stated they had experienced their lowest number of work-related deaths in 11 years.

WorkSafe NZ aim to provide guidelines about the new legislation, but in the meantime they advise five key areas that organisations should focus on which includes:

  • Familiarising yourself with the key concepts of the legislation
  • Reviewing your health and safety practices
  •  Identifying health and safety risks in your business and take steps to prevent these from causing harm
  • Leading by example
  • Making health and safety part of your workplace culture

 

Closing or selling your business?

We see many employers who decide to close down or sell their business and haven’t realised their good faith obligations extend to consulting with their employees before they make the final decision.

In a recent case a Whangarei woman whose employment was terminated because the business was closing down has been awarded more than $6000 for humiliation and other entitlements because she was not consulted about closing the business before the decision to close was taken.

Ms Saroz started work for Flower Feva Limited (Flower Feva) in June 2009 as the Florist Manager – and only employee. Flower Feva was situated in the Palmers Garden Centre in Whangarei. Ms Saroz was made redundant when Flower Feva ceased trading on 19 May 2014.

In May 2013 Mr Damian Luiten, the Director of Flower Feva, handed Ms Saroz a memorandum recording the decline in Flower Feva’s financial position and setting out some options to save money. Mr Luiten says it must have been obvious to Ms Saroz that the business was not doing well in the 12 months before it closed. Mr Luiten even suggested that because Ms Saroz was the only person working in the Flower Feva shop she must have somehow contributed towards its decline.

On 19 May 2014 Mr Luiten called Ms Saroz to a meeting and announced that he was closing down the Flower Feva business. Ms Saroz was handed a letter of termination which advised she was being made redundant that day because the business was closing. Ms Saroz’s employment ceased immediately.

In order for a dismissal to be justified it must meet the justification test in the Employment Relations Act. A fair and reasonable employer is expected to comply with its statutory obligations which include the duty of good faith and the four procedural fairness tests of the Act.

Mr Luiten says that even if he did not follow a proper process for making Ms Saroz redundant she still had access to information in her capacity as manager of the business so was acutely aware of its deteriorating financial position.

Mr Luiten says Ms Saroz was provided with sales reports weekly and that the two of them spoke frequently (almost daily) about the business and his concerns about its lack of profitability. However Ms Saroz had limited information about the overall business because it was effectively being run by Mr Luiten.

Section 4(1)A of the Act requires an employer who is proposing to make a decision which may adversely impact on an employee’s ongoing employment to provide that employee with relevant information andthe opportunity to comment on it before a final decision is made.

Mr Luiten says good faith requirements were complied with because Ms Saroz could have found the information herself.

Employment Relations Authority member Rachel Larmer said in her report that she found that the situation described by Mr Luiten did not meet the requirements of s.4(1A) of the Act and that Flower Feva had breached its good faith obligations. Flower Feva was obliged to provide Ms Saroz with relevant information about her ongoing employment – it could not assume she already had access to it. Ms Saroz was simply told she had been made redundant. She was not given any information before being made redundant much less an opportunity to comment on relevant information before she was dismissed.

During the Authority’s investigation Ms Saroz conceded that her redundancy dismissal was substantively justified because Flower Feva shut down its business due to financial issues.

Ms Larmer considered this was a realistic concession to make because at the date Ms Saroz’s employment terminated Flower Feva owed $74,000 rent arrears, it owed its shareholders $70,000, it had $23 in its bank account so could not pay staff and had considerable unpaid debts to it suppliers.

Ms Larmer did not consider it likely that there were any counter suggestions that Ms Saroz could have made in the circumstances that would have enabled the business to have turned around its financial situation even if a fair and proper process had been adopted.

The outcome was the Authority’s finding that Flower Feva was unable to justify Ms Saroz’s dismissal because it failed to follow a fair or proper process before making her redundant. Although there was a good reason for making Ms Saroz redundant (namely the Flower Feva business closed) the circumstances were such that Flower Feva still could and should have properly consulted with her before that occurred.

Because Ms Saroz’s dismissal was substantively justified she was not entitled to lost remuneration and her remedies were therefore limited to distress compensation. Ms Saroz was awarded $6000 for humiliation, loss of dignity, and injury to feelings and other entitlements she claimed.

Key learnings for business owners:

1. Good faith requires the business owner to:

  • consult with its employees about the proposal to sell or close its business (since that decision may have an adverse effect on its employees’ continuing employment);
  • provide affected employees with access to relevant information about the proposed decision;
  • allow employees to comment on the information provided, before any decision is made.

2. Review your employment agreements to determine your obligations. Your employment agreementsshould contain an “employment protection provision” which sets out the procedure you will follow when negotiating with a purchaser about the sale of your business.

3. If you are selling the business you should negotiate and discuss possibilities of redeployment of your employees with the purchaser. If applicable, you should ensure that you insert appropriate provisions in the Sale and Purchase Agreement that deals with how employees may be transferred to the purchaser.

4. Make sure you give your employees the requisite notice and pay any redundancy or accrued (but untaken) annual leave entitlements due to them.

6 Things Employers Must Know About Annual Holidays

Employers must know what these provisions are or risk personal grievances or prosecutions

1.       Advice of rights
Employers must advise employees of their entitlements under the Act and that information is available from the union if they are a member, and the Ministry of Business, Innovation and Employment (MBIE).

To show this has been done these points should be included in all employment agreements along with a provision concerning the opportunity to take independent advice.

2.       4 weeks holiday
This is standard and cannot be bargained away. Leave is to be expressed as so many weeks (not days). Since 1 April 2011 employees are able to request that one week of their annual leave be paid out.

A greater amount of annual leave may be agreed by the employer and employee.

3.       Annual holidays must be taken
The employer must allow the employee to take all their annual holidays. They can require them to take the annual leave by giving 14 days’ notice.

4.       Annual holidays do not lapse
If employees fail to take holidays then clauses preventing carrying forward are of no effect. Holidays remain due (an entitlement to the employee) until they are taken. Allowing a delay will put up your costs if wages rise, and as holidays accumulate. Holidays are paid at the current rate.

5.       Two weeks uninterrupted leave
Employees are entitled to take two weeks of their leave in an uninterrupted block.

6.       Close downs
Only one per year is allowed. This is where the business is closed and annual leave must be taken.

Calculating leave can be complicated however the onus is on the employer to get it right.  Keeping accurate records is another legal requirement to ensure you are complying with.

If you have any questions regarding the above please contact Chapman ER on 03 545 0877 or email your question to katrina@chapmaner.co.nz.  10 minute enquiries on any new matter are free of charge.