Employment update - Week 1, July

Bill to further prohibit workplace smoking

A Bill was introduced to Parliament on 17 June 2019 which intends to prohibit smoking inside a vehicle while the vehicle is carrying a child or young person under the age of 18.

The Bill seeks to amend the Smoke-free Environments Act 1990.

While currently under s 5A of the Smoke-free Environments Act an employer may permit smoking inside work vehicles with the consent of the user, the Bill plans to prohibit such an agreement where the vehicle carries any child or young person under the age of 18.

The Smoke-free Environments (Prohibiting Smoking in Motor Vehicles Carrying Children) Amendment Bill can be obtained at www.legislation.govt.nz.

Pre-existing offer of employment did not prevent subsequent trial period

In a recent determination, the Employment Relations Authority found that a trial period contained in an employment agreement was still valid despite the employer and employee previously already having reached a conditional offer and acceptance of employment (where no such trial period had been included).

An offer of employment was discussed with the employee and subsequently confirmed in writing setting out the key terms of the proposed salary, provision of a car park and payment of annual Chartered Accountants Australia and New Zealand (CAANZ) membership. The offer and acceptance were conditional as other key terms such as start date and hours of work were not part of that offer at the time. The employer gave advice at the time that the full employment agreement would be provided at a later date. The complete employment agreement containing the trial period was provided and signed by the employee around a week later (which was still before she commenced working).

Where a person has already been an “employee” for any period of time prior to signing an agreement containing a trial period, the person cannot be subject to a trial period. The case therefore raised the issue as to whether a person for whom an offer and acceptance of employment has occurred, but who has not yet commenced any work, is classed as already being an “employee” for the purposes of the trial period. Under s 6 of the Employment Relations Act 2000, a person who has been offered and accepted employment, but not yet commenced any work, is classed as an “employee as a person intending to work”. That does not, however, mean the person is classed as an employee for the purposes of the trial period. This issue was recently determined in the Employment Court in Roach v Nazareth Care Charitable Trust Board [2018] NZEmpC 123.

In Roach, the Employment Court considered that such an employee who had not yet commenced any work was classed as an “employee” as a person intending to work but only for the limited purpose of being able to raise an unjustified dismissal grievance in the event the employer withdrew the offer of employment. Not for the purposes of the trial period. On the basis of that ruling, when a pre-existing offer and acceptance of employment has taken place, but no work has yet been performed, an employer is not prevented from entering into a trial period agreement with the employee.

The Authority applied the ruling in Roach and found that the employee was not an employee at the time of signing the employment agreement as she was not an employee who had been previously employed by the employer when she signed the employment agreement. In similar circumstances to those in Roach, the employee had not yet commenced any work for the employer. As such the Authority upheld the trial period as valid and the employee was barred from pursuing a personal grievance for unjustified dismissal.