Holidays Act – could change finally be on the horizon?

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.  

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.

The use of Artificial Intelligence (“AI”) in the workplace is likely to become increasingly common as technologies advance and benefits become proven and trusted. One AI development that looks set to be eagerly embraced by business is the generative pre-trained transformer model designed by developer OpenAI and used in its Chat GPT product (as well as in competing products, such as Google’s Bard and Microsoft’s Bing Chat). In a nutshell, Chat GPT is a large language model chatbot that is able to generate content based on requirements set by the user.  It essentially searches the internet to find information that matches your query and can then produce written content including articles, emails and even social media posts, as well as images and graphics. While the use of this technology may create huge benefits for your workplace, there are a few key points that you should be aware of before you start: If you plan to use Chat GPT in the workplace, you should open a Chat GPT Enterprise account (or its equivalent). The Enterprise account will provide greater speed, data security and privacy than a standard individual account.  Yes, it will cost more, but if your employees use Chat GPT from their own account there is a risk that sensitive/confidential information may be leaked and could become available to anyone.  If you use the Enterprise level service, any information you input or work product received will remain private to you and will not be used by the model to provide work output for third parties. Furthermore, if an employee uses their own Chat GPT account to generate work product, it is the employee who will be the copyright owner of the work product – not the employer. This may create the issue of having to assign or license the right to use the content, or the employee having the ability to share the work product with third parties without requiring your consent to do so.  It may be simpler to have copyright clearly belonging to you from the start. Another important point is that the content that you receive may not always be correct or suitable! Chat GPT looks for any available information to help it formulate its work product.  That means it will not always retrieve accurate information, and in some cases could be basing its work product on false information.  Furthermore, the style of the response may not be suited to you or your customers.  Chat GPT is not yet able to distinguish between what might be a great communication to an American consumer from one that would work better in a New Zealand context. If you are thinking about using AI in the workplace, it really is a good idea to put policies in place so that you and your employees understand the parameters and effects.  It is an ever-evolving world of technology so you will need to ensure that policies (and employment agreements) are regularly reviewed and updated to meet your needs. If you require any assistance with your policy drafting and implementation, our employment law team is here to help (and will provide you with a much better-tailored service than Chat GPT!)