107 – Workplace Law Newsletter

In this edition:

Casino Worker justifiably dismissed for $310,000.00 payout to Player

In Hayashi v SkyCity Management Ltd [2017] NZERA Auckland 135 Mr Hayashi was employed by SkyCity Management Limited (SkyCity) as an Operations Manager.   Mr Hayashi was a long time employee of SkyCity, having worked there since 1995.  In February 2016 “Ms. A” was playing the card game baccarat in an area of SkyCity designated for significant international players.  The player, Ms. A, was a high value client of SkyCity and had been playing for 9 days.

On the day in question Mr Hayashi had been informed that the table limit for baccarat “any pair” side bet was limited to $25,000.00 in a specific salon; however Mr Hayashi mistakenly believed this applied to a different room.  The mix-up resulted in Mr Hayashi approaching Ms. A’s table and assuming she had been playing the wrong limit.  While she had only been playing a couple of minutes, he was of the view that any compensation for the wrong maximum bet should apply retrospectively for her entire 9 days of play.  This came to an overpayment figure of $310,400.00.

Despite a sum this large requiring authorisation from the Chief Executive, Mr Hayashi advised Ms. A of the error and that she would be paid.   Mr Hayashi then discussed this with his Manager, who disagreed with the payment, so Mr Hayashi proposed a “goodwill” payment to the client.   He was, however, eventually convinced no payment was owed and informed Ms. A accordingly.  Ms. A demanded the promised payment, with SkyCity eventually paying it to her.

SkyCity then proceeded to undertake an investigation, which resulted in Mr Hayashi being dismissed for serious misconduct.   Mr Hayashi claimed unjustified dismissal.   The Employment Relations Authority (Authority) applied the test of justification in section 103(A) of the Employment Relations Act 2000 and found the process adopted by SkyCity to dismiss Mr Hayashi, subject to minor defects, did not result in him being treated unfairly and the outcome was substantively justified.  The Authority stated that unfortunately what became, in effect, a personal crusade by Mr Hayashi to ensure that Ms. A, a significant client of the casino, was not disadvantaged by a highly unusual situation – a situation he substantially contributed to –meant Mr Hayashi lost his long career at SkyCity.


Record of Settlements – the importance of abiding by all Terms

The case of Silver Fern Farms Limited v Norton [2017] NZERA Christchurch 54; 12/04/2017 highlights the fact that parties to a Record of Settlement must abide by its terms.   This case concerned a Record of Settlement between Silver Fern Farms Limited (Silver Fern) and an employee after an employment dispute.  The Record of Settlement stated that the employee and Silver Fern, when speaking of each other to a third party, would do so in positive or neutral terms with the intent they would not disparage one another.  The employee proceeded to send an email to five people, including an employee of Silver Fern which made disparaging comments about Silver Fern, and called for a boycott of Silver Fern products.  The Authority concluded the breach was blatant, deliberate and designed to cause harm.  The Authority imposed a $2,000.00 penalty on the employee and ordered the employee pay $1,800.00 toward Silver Fern’s costs based upon the nature of the breach and the need for deterrence. 


Changes to Parental Leave Payments

From 1 June 2017 a few changes to parental leave will take effect.

One change means employees who want to receive parental leave payments can now use their paid leave (for example annual leave, alternative days, special leave or time off in lieu) first. In that situation their parental leave payment period can start at the end of their leave, even if it is later than the child’s arrival or due date. Before 1 June 2017, the parental leave payment period couldn’t start later than the child’s arrival.

Another important change means that a parent with a preterm baby has more flexibility around returning to work and parental leave payments. If a person has a preterm baby and they return to work after they start getting a preterm baby payment or parental leave payment, their payments stop and they lose any remaining preterm payments. However, from 1 June 2017, they can still get their parental leave payments when they go back on parental leave, as long as it’s no later than the original expected date of birth (had the baby not been born prematurely).


Top Ten Tips on undertaking a Restructure that may result in Redundancies

Going through a restructure is never easy on a business and can happen when stress levels are already at an all time high, not only for business owners, but for employees who are all too aware that their employment may be at risk.

In saying that, many businesses undertake a restructure, not because of financial difficulties, but to make the business more efficient by abandoning or contracting out less profitable areas.

Either way, when a business is going through the process of changing its structure by removing, replacing or varying positions, it is important employers get it right.  We have compiled ten quick tips for employers to keep in mind when going through a restructure and when redundancy/s may be the end result:

  1. An employer must have a genuine commercial reason for undertaking a restructure.
  2. Redundancy can not be used as a means to terminate problem employees!
  3. Give employees a clear restructuring proposal with detailed and relevant information, including how they will be affected by the proposal.
  4. As a general rule, employees will not be redundant if they are to be replaced by others to do the same or substantially similar work in the same positions.
  5. Always act in good faith, be honest and open with employees.
  6. Give the employees an opportunity to provide their feedback – whether it be in person or in writing.
  7. Genuinely consider employees’ feedback with an open mind.
  8. Use clear and transparent selection criteria where more than one position is to be made redundant and abide by those criteria.
  9. Redundancy should only occur after all redeployment options have been exhausted.
  10. Redundancy is the last option.  Follow any process outlined in the employment agreement, including whether an employee being made redundant can be paid in lieu of notice and if they are entitled to redundancy compensation.


Immigration

South Island Employees Set to Benefit From New Work to Residence Visa

The visa landscape has changed in the South Island following the introduction of Immigration New Zealand’s new South Island Work to Residence Visa on 22 May.

The new visa will benefit thousands of South Island employees and their families who have been living in the South Island for more than five years but have not been able to qualify for residency under the Skilled Migrant Category.

To qualify under the new policy employees must meet certain eligibility criteria.  These include:

  1. Being 55 years or younger;
  2. Currently employed in the South Island on an Essential Skills work visa; and
  3. Have been employed in the South Island on Essential Skills work visas for more than five years as at 22 May 2017 (note there is certain flexibility in relation to this if people are fairly close or have has some small amount of time working in the North Island).

Successful employees will be granted a new 30-month work visa that will allow them to apply for and secure residency after being employed on this new visa for a period of two years, without any skill/qualification assessment or English language testing.

The new policy will also allow the children included in the application who have completed compulsory schooling in New Zealand to be granted work visas to allow them to work in the South Island until the family is able to transition into residency.

This new policy will have a positive impact for a range of employers who have had to continually support some of their employees to secure work visas every year, because those employees cannot currently qualify for residency because of the English language requirement or they cannot claim the 160 points required to qualify.

If you have any employees that you think may benefit from this new policy, please either contact us or have the employee(s) concerned get in touch with us for a free initial eligibility assessment.


Workplace Law Team

If you have any queries in respect of the above, or any other workplace law issues, please contact a member of Lane Neave’s Workplace Law Team:

Employment: Andrew Shaw, Fiona McMillan, Julia Hurren, Siobhan Rastrick, Gwen Drewitt; Holly Struckman; Anna Needham
Immigration: Mark Williams, Rachael Mason, Nicky Robertson, Hetish Lochan, Daniel Kruger, Lavinia Shanks, Winnie Chen, Caroline Edwards, Ken Huang, Laura Hamilton
ACC: Andrew Shaw
Health and Safety: Andrew Shaw, Julia HurrenFiona McMillan, Gwen Drewitt

Disclaimer: Our aim is to assist our clients to be proactive in ensuring statutory compliance and best risk management in the area of employment law. This publication is, however, necessarily brief and general in nature. You should therefore seek professional advice before taking any action in relation to the matters dealt with in this publication.