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Test Your Knowledge – The Privacy Act 1993

The purpose of the Privacy Act 1993 is to promote and protect individual privacy – in particular to establish principles on: collection, use, and disclosure of information relating to individuals and access by individuals to information held about them.

Below are some common misconceptions and facts about your Privacy, rights and requirements courtesy of the Privacy Commissioner NZ.

Q 1. True or False: if your profile on a social network is set so that only your friends can see it, your profile is completely private.

Click here to find the answer

Q 2. True or False: You always have control over the pictures you post online.

Click here to find the answer

Q 3. The Privacy Act protects your personal information. Personal information consists of:

A. Your name, age, weight, height, home address and phone number.

B. Your blood type, DNA code, fingerprints and medical records.

C. Your education, purchases and spending habits.

D. All of the above.

Click here to find the answer

Q 4. It’s really easy to share pictures and stories with your friends on social networking sites. When you’re posting items you should:

A. Post everything that you think is funny and interesting – your friends will love these things!

B. Don’t post anything – it’s a creepy world out there.

C. Think first. Would you be comfortable if your parents, teachers or bosses saw what you are posting?

Click here to find the answer

Q 5. When you’re surfing online, websites can collect this information about you:

A. My personal preferences.

B. My approximate location.

C. The software I’m using.

D. All of the above.

Click here to find the answer

Q 6. You’re buying an item of clothing at the mall. As you’re about to pay for them, the shop assistant asks for your address and phone number. You:

A. Give it to him. The shop probably needs it in case I want to return the jeans.

B. Ask why he needs it. Once you know what the shop plans to do with your information, you can decide whether to hand it over.

C. Refuse. It’s none of their business!

Click here to find the answser

Q 7. Under the law, you have a right to complain if:

A. You think your personal information was improperly collected, used or disclosed?

B. You run into difficulties trying to get your personal information from an organisation, or to get your personal information corrected when it’s wrong?

C. All of the above.

Click here to find the answer

Q 8. Can an employer contact a job applicant’s past employer for a reference?

Click here to find the answer

 

Other Privacy breaches/concerns that Chapman ER have seen of late are:

 

Q 9. Birthdays. Is it OK to email ‘All staff’ notifying them of an employee’s birthday so they can congratulate them or buy them a card or present?

A. It’s only OK if it’s a special birthday for example a 40th or 60th

B. It’s only OK to send to the employee’s immediate team

C. It’s only OK if the employee gives you permission

D. It’s never OK

E. It’s always OK

Click here to find the answer

Q 10. Resignations. Is it OK to send an email to all staff notifying them of the resignation of an employee and communicating where the staff member will be moving to or what they will be doing next?

A. Only OK if the staff member agrees to the communication

B. It’s always OK. The role is being vacated, the employee is leaving and the staff have a right to know.

C. It’s never OK and the staff will find out soon enough when the job is advertised.

Click here to find the answer

Q 11. Work emails. Can you monitor any information on your company’s computer system i.e. Information accessed and saved on your employee’s desk top?

A. No that is an invasion of your employee’s privacy.

B. You can only monitor work related information.

C. You can only monitor information on an employee’s computer if an alarm alerts you to pornography or inappropriate material being accessed

D. It is your system and you can monitor and access any information stored or accessed on an employee’s desktop, laptop, or other device

Click here to find the answer

 

Q 12. Which answer applies to information gathered from an employee during a workplace investigation e.g. Health & Safety, Bullying:

A. The employee can withdraw their statement at any time through the process

B. The employee cannot withdraw their statement once communicated

C. The employee can correct the information provided if it is recorded inaccurately

D. The employee cannot refuse to participate in an investigation process

Click here to find the answer

Migrant Worker Exploitation Cases Becoming More Prevalent

A migrant worker who was forced to pay her employer a premium to secure herself a job has been awarded $42,813 by the Employment Relations Authority.

Kapilaben Patel was employed as a chef by Curry Pot on Lincoln Ltd for three years from 2011 until mid- 2014.

The ERA found that Patel and her husband had made payments of around $15,000 in return for a job offer with Curry Pot Indian restaurant in Lincoln and assistance and support with a work visa and a residency application. Evidence showed that $5,000 was paid to the Curry Pot Indian restaurant four months before Patel started working there and 11 days before an employment agreement was signed and submitted to Immigration New Zealand.  Patel stated she also paid the directors of the restaurant cash payments.

Patel was awarded $31,413 for unpaid wages, working on public holidays and holiday pay from 2011 until 2014 plus $11,400 in reimbursement for the premium paid to secure her employment.

The company accepted there may be some statutory holiday pay owing to Mrs Patel but disputed all the other amounts claimed. They claimed she did not work all the hours claimed or that she paid them premiums.

“Advances may have been made from Mrs Patel to staff at Curry Pot but these, aside from one payment of $5,000 into the Curry Pot account, were personal in nature and not premium payments and they have nothing to do with Curry Pot” it said.

Could your Volunteer or Woofer be an Employee?

Did you know, that anyone working in return for food and accommodation is likely to be an employee? This means they are entitled to the same minimum employment rights as a paid employee and you need to register as an Employer, file Employer forms with IRD and pay PAYE, check they are allowed to work in New Zealand, keep time and wage records and enroll them in KiwiSaver if they are eligible. You need to make sure they receive minimum entitlement including that the value of what they are getting is not less than minimum wage, and pay sick leave and accrue holiday pay! If you do not deduct PAYE, you still need to calculate the amount of PAYE on the market value of accommodation etc provided and pay it to IRD.

This is not an exhaustive check list, please contact us if you need further information or have any queries.

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!

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.

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.

Performance management vs disciplinary issues

You are aware of an issue with an employee but are unsure how to deal with it – is it a performance issue or a disciplinary issue? Does it even matter?

Yes, it matters. There are two distinct processes – one for managing poor performance and one for dealing with bad behaviour – and it is important to start off down the right path.

A gym manager who lost his job after returning from holiday to find several complaints had been made against him has been awarded $6,000 compensation for unjustified dismissal.

The Employment Relations Authority (ERA) found his employer, Snap Fitness, was unfair in firing Mathew Milne as the complaints made were about performance, rather than serious misconduct.

Eight allegations against Mr Milne were raised, among them that Mr Milne had been rude to customers, to have failed to take seriously a number of complaints made about the safety of the gym and he was accused by another trainer of taking four hour lunch breaks. On this count the ERA found no basis for the allegation, noting the trainer who made the complaint “clearly did not get on” with Mr Milne.

Korey Gibson, Mr Milne’s boss, said in a letter to Mr Milne, “as a manager there is a high level of trust and confidence that is required: my trust and confidence in you to remain in the role has been seriously eroded.” Mr Gibson summarily dismissed Mr Milne for serious misconduct.

The ERA found that, with one possible exception, the accusations were “matters of performance, not matters of serious misconduct.”

Mr Milne was a young and inexperienced manager in a sole charge position. The ERA said Snap Fitness were unfair to Mr Milne and warnings or further training would have been the appropriate course of action rather than dismissal.

It is an employer’s obligation to try to resolve problems in good faith. In cases of poor performance, good faith means giving an employee a real opportunity to improve their performance and assisting them to do so. In cases of misconduct this means conducting a fair and full investigation and giving the employee the opportunity to be heard.

Your actual treatment of any given situation will depend upon the specific circumstances, your Code of Conduct and policies and procedures, and past practice. If you are in any doubt, specific employment advice should be sought. Early clarification can save significant cost down the line.

Chapman Employment Relations provides employment law and HR advice exclusively to employers.

Any questions regarding this column can be e-mailed to christine@chapmaner.co.nz

Health and Safety Reform Bill

Worksafe NZ

As you may have seen in the Media coverage the Health and Safety Reform Bill has been reported back to Parliament which has made some improvements and clarifications. The Health and Safety Reform Bill will replace the old Health and Safety Act and is part of a number of changes aimed at reducing New Zealand’s injury and death toll in the workplace which is far too high. The bill is likely to become law later this year.

While the changes are primarily driven by the need to reform high-accident-rate industries such as forestry,  mining and farms the Bill will effect every business, including small office and retail businesses so you need to assess your business for potential accident-causing behaviour in your workplace. For example how many people stand on a chair to change a light bulb rather than using a set of steps?

Health and Safety is everyone’s responsibility – get it wrong and the penalties are significant.

Duty Holders

A Person Conducting a Business or Undertaking (PCBU) have health and safety duties toward their employees and to any other person affected by the work of the business or undertaking.  Duty holders’ obligations are limited to doing what’s in their ability to control and manage and is reasonably practicable. This makes job descriptions very important as a way to establish exactly what is in the duty holder’s ability to control and manage.

Directors, board members or partners, will now (as an officer of a PCBU) have a new duty to ensure that the PCBU complies with its duties. The bill expressly excludes those merely advising or making recommendations to an officer.

However, the responsibility sits with the PCBU, not all duty holders.

The duty holders are now personally liable and can faces fines up to several hundreds of thousands and even prison terms. This cannot be insured against.

In a shared workplace there may be more than one PCBU, the PCBUs are then required to consult, cooperate and coordinate with each other. The bill also clarifies how to do this.

A PCBU does not have a duty towards people who are at the workplace for an unlawful purpose.

Worker participation

The responsibilities of a PCBU have been clarified in the new Bill, under which a PCBU need to engage with the workers on health and safety matters.

Some flexibility has been added to ‘worker participation’ in health and safety matters in the workplace. Health and Safety Representatives and Committees are one way of meeting the worker participation requirement. Smaller workplaces with less than 20 workers in low risk sectors will not be required to have a Health and Safety Representative or Committee when requested by workers. All other businesses need to decide whether to elect a Representative and Committee when requested. If they are satisfied current worker participation practices meet the requirement of the new law they can decline the requirements.

Health and Safety Representatives will have the power to intervene if they see an unsafe situation with serious risk. There are limitations to and training requirements attached to their power.

Definition of a Workplace

The Bill defines a workplace as a place where ‘work is carried out, including anywhere a worker goes or is likely to be while at work’.

Some areas might not be workplaces all of the time. Farmers especially had some concern regarding allowing public to enter their land, but it has now been clarified that a workplace is somewhere where work is customarily carried out, including any place a worker goes or is likely to be while at work. So, farm buildings and immediate surrounds are under the duty of the farmer as a PCBU, other parts of the farm (like paddocks) are only workplaces while work is being carried out in that part. So, the farmer does not have a duty towards recreational users coming onto farm land unless work is carried out in that part of the farm at the time. The farm family home is also excluded from the farm workplace.

Volunteers

The bill will continue to distinguish between casual volunteers and volunteer workers, where casuals health and safety will be covered but the PCBU’s duty to any other person affected by the work of the business or undertaking but not to the extent of employees. Volunteer workers will have the same protection as any other worker.  If it’s purely a volunteer organisation with no employees it is not a PCBU so the Bill won’t apply. If the organisation has employees it’s a PCBU and the Bill applies.

The following would be classed as casual volunteering not volunteer workers: participation in fundraising activity, assistance with sports or recreations for an educational institute or club, assisting with activities for an educational institution outside the premises of the educational institution, providing care for another person in the volunteer’s home.

For further information, visit:

Worksafe New Zealand

Ministry of Business, Innovation & Employment