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

Misuse of Employers Information Costs Employee Millions

It’s something employers everywhere worry about; an employee uses their customer details and other business information for their own financial gain which also negatively impacts their business.

In one case recently the Employment Relations Authority found an employee, Michael Mitchell, had breached his duty of good faith and fidelity to his employer, Nova Energy.  Mr Mitchell had uploaded a client list and rates onto a USB drive prior to resigning from his role.  He then went on to use the information in a competing business that he set up, called National Energy Limited (NEL).

He was able to determine which of Nova Energy’s clients were paying high margins, who had a recent contract and who was near the end of a contract.

Nova was able to provide the Authority with calculations of their losses related to Mr Mitchell’s activities which totalled slightly more than $1m annually.  Nova claimed that Mr Mitchell should pay this amount, as damages, for a projected 10 year period.

The Authority reduced the period to 7 years, taking into account relevant discount factors.  However, they also ordered Mr Mitchell to pay a penalty of $30,000 and his company, NEL, to pay a penalty of $50,000, to Nova Energy.  This was in part due to the deliberate nature of Mr Mitchell’s actions, and for NEL, it was because they aided and abetted the breaches made by Mr Mitchell.

It is perhaps worth noting that Mr Mitchell did not have a restraint of trade agreed with his employer.  We sometimes see clients request a strong restraint clause for an employment agreement to address concerns such as those noted in this case, but often it’s other clauses that provide the desired protection, such as confidential information requirements and non-solicitation wording.  Do talk to us if this is something you would like to check for your business’s employment agreement templates.

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

Barbican Training Centre

Barbican Training Centre is an organisation we love to recommend to our clients, they provide outstanding training for people new to business or those who want to improve their business management and IT skills

Their 2016 training menu is ready to go with information and enrollment sessions starting NOW!  Their programmes are still FREE and are open to permanent NZ residents aged 16+ at Nelson, Blenheim and Motueka locations.

Here are the quick facts for 2016…

 

BusinessNO FEE 36 weeks, one evening or morning a weekStarts 29 February

In Nelson, Motueka and Blenheim

 

Certificate in Small Business Management, Level 4Run a successful business and develop your own business plan

Register here

 

ComputingNO FEE 18 weeks, two evenings a weekStarts 7 March

In Nelson and Blenheim

Certificate in Computing, Level 3Get computing skills for the office

Register here

 

MoneyNO FEE 20 weeks, one evening a weekStarts 14 March

In Nelson, Motueka and Blenheim

Certificate in Money Management, Level 3Get money savvy and learn the secrets of the rich

Register here

 

AdvancedBusiness

NO FEE

24 weeks, one evening a weekStarts 1 June

In Nelson and Blenheim

Certificate in Applied Small Business Growth and Development, Level 5Ramp up your business and management skills

Register here

 

Programmes delivered in partnership with Te Wānanga o Aotearoa.  Places are limited and allocated on a first come, first served basis.  Open to permanent NZ residents over 16 years and not enrolled in another relevant government subsidised training programme.

To get the whole menu with all the facts, visit www.barbicantc.com.

or contact Pip Bruce

Barbican Training Centre Limited

www.barbicantc.com

+64-3-547 6138

2016…Awaken the Force

Agriculture Sector, Health and Safety News – Are you Ready for April 2016?

As the clock ticks ever closer to the 4th April 2016, we should all be preparing our farm business models, and educating ourselves and our staff as to how each workplace will meet compliance with the recently passed new Health & Safety law – The Health & Safety at Work Act.

Across the whole rural industry each individual (from governance to the casual worker), business, organisation, association and industry within our industry is being challenged by how it will work simply, effectively, be able to maintain compliance without the myriad of paperwork that could break the time bank. There is also fear out there of the possibility of ‘missing’ that critical compliance measure that could leave the business exposed to undesired risk should an accident occur. The newly appointed legal obligation to manage the risks within the farm workplace control for all contractors and staff is a worry for many. That the application of legal duties has now also been expanded to include any person who holds a governance position in a business like a partner, trustee or director. In most farm businesses that will mean husbands and wives and farmers’ family members, as well as farm owners.

Governance & boards seek confirmation from the OnFarmSafety New Zealand team that their farm systems are being well managed in this Health & Safety space, and yet often what we find is that managers and staff have not had clear support and guidance from the business owners as to expectations regarding rules, responsibilities, liabilities, reporting and very rarely get comprehensive feedback. Often governance lack the required knowledge to develop the policy. Being deemed competent is also proving a challenge as we are working in a predominantly self-taught industry. Does that mean we all have to be certified and in what?

As a business we are inundated with calls as to how to, what’s compliance, and where to go to for good farm focused health & safety advice. Hence our business model’s core focus is on farm with the farmer owners and their teams taking the time to listen, assist, educate and counsel. Our comprehensive Australian / New Zealand standardised audits establish not only the compliance status, but the start of the business action plan and an enormous amount of education is part of every farm visit. Our paper based and online systems mirror the client’s needs for not only their farm activity but also that of their service providers – shearers, fencers, agricultural air provider, bulk spreader, vet etc. What we are seeing out there is that if there is a system in place, often it is a generic waste of time and money and there is no management understanding as to application. Our advice would be to be very careful as to the off-the shelf quick fix options being pushed out there at your expense.

It takes time to get these Health & Safety systems right. Don’t take shortcuts and expect a few signs and a sign in book to suffice. We need industry leadership and participation to develop rural industry standards starting with what practical good practice looks like, and consulting with associations, and then regulation. The regulator is waiting for our industry to take the lead. There is some really good material and supporting safety management tips within the codes, acts, and guidelines available – it just takes time to analyse what’s relevant and required by your farm business. That’s what we at OnFarmSafety NZ assist with – specialise in the relevant industry health & safety requirements for individuals and the whole farming industry.

Working with OnFarmSafety New Zealand, rural health & safety specialists, can assist you to ensure compliance in the same way you would address your other key farm business aspects. ie tax, finance, animal health. Don’t discover health & safety by accident!

For Nelson/Tasman & Marlborough region, contact Sandra on 027 757 0011

Email sandra@onfarmsafety.co.nz Toll Free 0508 ON FARM  Website: www.onfarmsafety.co.nz

 

Company Director Changes

From 28 October 2015 all New Zealand companies must have at least one director who lives in New Zealand, or who lives in Australia and is a director of an Australian registered company. We have been working with our clients to help ensure these requirements are met.

However, if your situation changes, for example you are moving overseas and the company you are a director of will be left without a director living in NZ, then you need to appoint a NZ based director. The same applies if the director you appointed, that at the time was living in NZ decides to move, you would need to consider a new appointment of a NZ based director.

If you are thinking of moving overseas, short term or long term, please contact our office to check the requirements.

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

 

Protect against Cyber Attacks

Cyber attacks, like email hacks, computer viruses and misuse of credit card details are getting more and more common. Research shows that 8 in 10 New Zealanders have experienced a cyber attack of some kind. By taking the following steps you could stop hackers getting through and reduce the impact if any do sneak through.

1. Update your software – regular updates guards against the latest hacks and bugs. So next time you see an update notification, click “yes”

2. Be wary of phishing – banks, IRD and Trade Me and similar sites will never ask for your password. Don’t click on links in emails to log in to ‘your account’,  if it’s a scam you will just have given away your username and password. Instead, always type in the address in the address bar and then log in.

3. Find your weak points – look at your systems with a critical eye and ask yourself if you’re making it easy for an unauthorised person to gain access. Avoid using the same passwords for multiple systems. Make sure staff have individual logins when possible. And change your passwords regularly.

4. Introduce processes – this could be specific times to make batch payments or deposit money and a designated password holder for a specific system. This will make it easy to spot suspect transactions.

 

Foodbank Donations

Even in Nelson, the place we love to call home and where we own businesses, or work and play there are people who miss out on some of the very basic things many of us take for granted – like food on the table! The Nelson organisations who provide precious food to those who need it are running very short on supplies, in fact their cupboards are almost bare.

We want to help and we need you to help us do that. For the months of October and November we will be collecting donations for the Nelson Foodbank.

And to encourage your generosity we have two Magnums of Delaplace French Champagne to give away, all you need to do is drop an appropriate item of food in to our office to help those who need it and we will put you in the draw to win one of the magnums. Every food item you bring in gets you one entry so if you drop off 5 cans you get five entries.

We will give away one magnum each month.

Non-perishable food items like cans of baked beans, cans of fruit, packets of cereal and even cans or bags of pet food (for the household pets not the people) are needed urgently.

Just one can of food can make a difference to a family in Nelson so next time you are at the supermarket buy an extra item to help someone who will really appreciate your gift.

Changes to Annual Company Returns

More detail in Companies Office annual returns

From 1 July, annual returns to the Companies Office must include extra information about company directors so if we manage your annual company return we will be asking you for extra information. The following is from a recent Business Insider Newsletter from www.business.govt.nz :

Filing an annual return will remain a quick and easy process, but you will need to take the time to gather the following details:

  1. Date and place of birth for each director of the company you’re filing the annual return for (don’t worry – this information will not be publicly available).
  2. Details of an ultimate holding company, if applicable, including where the holding company is registered. (If you’re unsure what an ultimate holding company is, check the shares and shareholders section of the Companies Office website.)

If this information is missing, the annual return will not be accepted and the company may be removed from the register.

Remember, by 28 October 2015, all New Zealand incorporated companies must have at least one director who lives in New Zealand, or a director who lives in Australia and who is also a director of an Australian incorporated company.

See Companies Act: what to do and when to do it  for more information and case studies

IRD and Tax Refunds

IRD are now only paying refunds you may be due for into a bank account, they are no longer issuing cheques.

This means it is vital we have your correct bank account number on record for the account you want refunds paid to. Please ensure you advise us of the preferred bank account number(s) when you deliver your accounts information to us.

If you do not provide us with your bank account number there will be a delay in preparing your tax return while we confirm the information with you.

Once assessed by IRD, we will check your assessment and notify you that the refund has been issued, but sometimes the refund goes through before we receive the assessment. Please await our confirmation that the assessment has been checked before you spend the money. In the case of an incorrect refund we will notify you and advise you how to pay the money back to IRD.