With Aotearoa now experiencing the first Level 4 lockdown since the Covid-19 Public Health Response Act 2020 was passed in May last year, the Government has issued a completely new order that sets out the restrictions (and exceptions) for what Level 4 looks like.
The Covid-19 Public Health Response (Alert Level Requirements) Order (No 9) 2021 (the Order) is based on the same three main restrictions that applied during the March 2020 Lockdown:
- A direction that everyone stays home, except for essential personal movement (cl 15);
- A direction that all business premises are closed unless they are “Alert Level 4 Businesses or Services” (cl 18); and
- A prohibition on any outdoor gatherings, except where all of the people live together (cl 18).
The Order also contains other rules that apply even with permitted activities – such as maintaining 2m distance wherever possible and wearing masks on public transport, in taxis or when in shops. New Zealanders are now used to these requirements and have a good understanding of the main requirements of lockdowns. What is less clear is the exceptions – what are they allowed to do outside, and what businesses are still allowed to operate.
Essential Personal Movement
The personal exceptions, or “essential personal movement” under the Order cover a range of issues. Some are very specific – like attending court hearings or returning from MIQ. However, most of the exceptions are more general. The key exceptions for individuals are:
- Using Essential Services: People are allowed to leave their homes to access businesses that are still operating, so long as they either stay in the same district (measured using territorial authority boundaries) or are going to the nearest option (if it is across the boundary).
- Attending work: People may go to their place of work if they are working in a business that is allowed to remain open and their work cannot be done from home.
- Medical or Veterinary Services: People may go out to access medical services, to help someone they live with access medical services, or to get emergency veterinary care.
- Recreation: People are allowed to go out to a place that is readily accessible from their home (including by vehicle) for recreation, so long as it is not a high risk activity (which includes tramping, swimming, diving, and water sports and motor sports of any kind).
- Shared care arrangements: As set out in our other article on the topic, leaving home for shared child care is also permitted.
These activities are not exhaustive, but cover the most popular activities that are permitted at Level 4. All of them are also subject to the standard requirements to keep at least 2m from other people and not to meet with people from outside your ‘bubble’.
Business Exemptions
The situation for businesses is more complex. The order sets out a detailed schedule of different “Alert Level 4 Businesses or Services” that are allowed to operate. The important ones to be aware of are:
- Food and essentials: Groceries, petrol and essential items can still be sold – with non-grocery items needing to be sold via online delivery. The products being sold must be “essential” to qualify.
- Medical services: Medical providers are allowed to keep operating under Leve 4.
- Accommodation: Motels and other accommodation providers are allowed to remain open, but must not serve food.
- Supply Chain: Anyone involved in supplying food and essentials or supporting essential businesses is entitled to continue operating provided that they have appropriate contact tracing in place. This also includes businesses responsible for managing services like gas, water and power.
- Essential Construction: Construction work can continue if it is necessary for maintaining existing critical infrastructure or to deal with immediate health and safety risks. This includes work on private homes but only if it is for urgently needed repairs. Businesses that supply builders and tradespeople can also stay open, but only for trade customers.
- Transportation: Taxis and public transport can remain operating.
Other than essential groceries and petrol stations, most essential businesses are not allowed to have customers on-site and need to deal with them remotely. Where customers are on site, they are required to remain 2m apart in most cases.
Penalties
Failure to comply with the Order can result in fines, and in some cases even imprisonment.
Breaching the Order is, in most cases, an infringement offence. This means you can be given a “ticket” for $300 for most breaches. Alternatively, the Police can go to court asking for you to be fined up to $1000.
Where the breach was deliberate, this is also a criminal offence and there is a maximum penalty of six months’ imprisonment. While this will usually be reserved for serious cases, any intentional breach carries a possible criminal conviction. During the March 2020 lockdown, many people who breached received short sentences in prison – deliberate flouting of the law carries a very real risk of similar treatment.
Special Exemptions
The Director-General also has a specific power to allow other exceptions for individuals or groups. Applying for an exemption requires a person to provide a good justification for why they should be exempt. Holland Beckett Law has experience applying for these exemptions, and is happy to discuss your situation if you think that an exemption is appropriate for your business.
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Swearing in the workplace – can I be dismissed for swearing at work?
Swearing? We are all guilty of doing it to some extent, but what about in the workplace? Is it acceptable and if so, to what degree? Can your employer discipline you for an outrage of expletives?
In some circumstances and in certain workplaces, dismissal may be wholly warranted, while in others, it may not, notwithstanding that it is the same conduct in question. Confused? Context is key alongside a myriad of factors to be taken into consideration. Ultimately it will come down to what is fair and the workplace culture.
The issue of “fairness” is addressed in the Employment Relations Act 2000 which tells parties whether a dismissal will be fair or not.
For instance, in the case of Waihape v AFFCO New Zealand Limited [2017] NZERA 13 several mitigating factors were taken into consideration, including the context of the situation, the nature of the workplace and the relationship between the parties involved.
In Waihape, it was determined that given the nature of the workplace, several individuals regularly swore in their day-to-day banter and an employer would struggle to justify taking action for a staff member using bad language in those circumstances. The evidence showed that management failed to crack down on similar offensive language in the workplace. The Authority quoting from precedent said:
“It is well established that an employer will fail to justify a dismissal where communications do not appear to be greatly out of character with others apparently condoned by management in the workplace.”
Overall, case law suggests that if an employer wishes for certain standards to be upheld, it will need to ensure there are policies in place to make employees aware that swearing is unacceptable. Furthermore, employers will need to demonstrate that it does not tolerate swearing in the workplace by enforcing the policy when it is breached.
It is both best practice and prudent for employers to ensure that the expected and acceptable standards of behaviour are addressed and imbedded into any training and induction processes.
Above all else, it is imperative that employers do not single out an individual for the use of course language while letting other employees get away with the same.
The key takeaway is, like with all disciplinary matters, a fair procedure must be followed. An employer will need to establish the facts and review any offensive language in the context of the circumstances alongside the company’s relevant policies.
Before taking disciplinary action, an employer will need to carefully consider whether a verbal warning or written warning is more appropriate. Dismissal would only be justifiable if the employee’s conduct warrants gross misconduct and summary dismissal.
Whether you are considering taking action against an employee or you are an employee facing disciplinary action yourself, we recommend getting cogent advice first. Speak to our team today.
Restructuring in the workplace – What employers need to know
With the economy continuing on its downward slide, you will not be alone in giving thought to potential cost cutting measures, including reducing your labour costs.
Restructuring is usually a last resort for employers and is only a step that tends to be taken when there seem to be no other viable options for reducing costs quickly. While the impact on employees is immense, it is clear that a restructure process can be just as stressful and fraught for an employer. That is why, sometimes, employers can get things wrong and may find themselves at the centre of a personal grievance, which can result in greater stress, cost and uncertainty.
A restructuring needs to be substantively justified, and procedurally correct. If you do not meet both of these requirements, there is a risk that if an employee were to make a claim against you, it could be upheld.
What is Substantive Justification?
It is likely that during recessionary times, such as we are in now, the substantive reasons for a restructure will be fairly obvious to your employees. However, you will still need to justify this by providing evidence in support. This may include pointing to reduced sales figures or forecasts, showing increased costs (i.e. materials, rent, insurance), or any other information that you are willing to share that goes toward justifying the proposal to restructure.
What is the Correct Procedure?
The procedure for restructuring is usually where an employer can get tripped up. To start, you need to remember that you should not pre-determine that a restructure is inevitable. You have a good faith obligation to your employees to consult with them before any decisions that may affect their employment are made. It may be that during consultation, you are able to see a way forward that means a restructure is not required, or at least not to the extent that you had originally envisaged.
Once you have substantive justification, you need to advise your employees that you are proposing a restructure and give them adequate information including what the restructure would entail, how it would impact them, and how you wish to consult with them about it.
You will then move to the consultation stage and be ready to provide further information or answer any questions the employees may have. Once you have finished consultation, you will need to advise the employees of your proposed decision. Your employees should then be given an opportunity to comment on or ask further questions about the proposed decision. It is not until they have been given this opportunity that you should procced to confirm your decision.
The exact process you follow will depend on factors such as the size of your workforce, the number of roles that may be impacted, the typical method of communication with employees, the specific terms of your employment agreements, and the location of your employees.
Having guided employers through numerous restructures, the one point we want you to keep in mind is that getting your restructure right is by far more preferable than having to deal with the consequences (and potential costs) of getting it wrong. We can provide specific advice and guidance on restructuring and all other employment related issues, so please contact our employment law team at any time for further information.
Holidays Act – could change finally be on the horizon?
Earlier this week the Workplace Relations and Safety Minister Brooke Van Velden gave a speech to the Auckland Business Chamber, reiterating her priorities following the conclusion of the Government’s 100-day plan in which Fair Pay Agreements were abolished, and the availability of 90 day trial periods extended to all new employees. The Minister has confirmed that delivering changes to the Holidays Act (“Act”) is one of her top priorities, which is likely to be welcome news to both employers and employees.
Compliance with the Act has been difficult and costly for employers and payroll providers. The Labour Government put together a taskforce in 2018 to address the many issues being experienced by employers when calculating leave and holiday entitlements. The taskforce made a number of recommendations, all of which were accepted (for further details on these changes see our previous article here). A draft Leave Entitlements Bill was prepared, however was not introduced prior to last year’s election.
The overarching issue with the Act is that there are multiple ways to calculate an employee’s holiday pay, and the Act has struggled to keep up with working arrangements outside of a normal five day a week salaried employee. Payments such as bonuses, commission, or if an employee works variable hours mean that the calculations are not straight forward and are often done incorrectly. The changes proposed were an attempt to simplify these calculations.
The Minister has now confirmed that the changes recommended by the taskforce and the draft Bill will not be “simply rubberstamped” and will be subject to scrutiny as well as consultation with key stakeholders. She went on to say “if the policy is difficult to draft, chances are businesses would have a tough time implementing it too”. This indicates a major reset of the Act, and the changes which we had expected, could be on the way.
Other indicated changes to employment law include a change to the rules surrounding contractors (with the Court of Appeal due to hear the Uber case this month (see here for our previous advice regarding this), we are likely to also have further developments in this area from the Courts later in the year) and changes to personal grievances. The Minister has asked for advice on whether an income threshold for raising a personal grievance can be set and removing eligibility for any remedies when an employee is at fault.
The Minister has been very clear that she would like to receive feedback from the stakeholders who will eventually have to work with the Act and it is important that businesses use this opportunity to have a say on the Act. The majority of employers have struggled to achieve strict compliance with the Act due to its many complexities. Putting forward issues which regularly impact your business will ensure these can be given consideration. Our team will be closely monitoring this and will provide specific information on how feedback can be given when this information is available.
If you require assistance with your current obligations under the Act, or would like to discuss providing feedback then please feel free to get in touch with a member of our specialist employment law team.