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Not Entirely Legal

Temporary Employment

We are at that merry time of year when young people’s thoughts turn to trying to get some employment over the Christmas holiday period to fund the ever increasing costs of tertiary education. Others are looking to increase family revenues with additional employment.  Happily it is also the time of year when many businesses  require extra help.  Unfortunately however employers may be reluctant to hire part time casual or seasonal staff due to worries about the cost of compliance with the new Employment Relations Act and employment relationship difficulties that might ensue.  This column will allay such fears and concerns!

 

It is correct that even for part time or casual employment there should be an individual employment agreement entered into between the employer and employee.  However once an employee has placed on its computer hard drive a standard agreement appropriate for its particular business it is a simple matter to use it from then on for any additional staff. Employers are going to need such an employment agreement and once you have met that cost of a standard agreement it can be recycled.  I have found that most employers have a computer and access to email.  It is a simple matter for me to “paperclip” an agreement to an email, and once they have that on their computer they can call it up at will.  Easy! 

 

There are also some popular misconceptions that are impeding the employment of extra staff.  One is that it is no longer possible to have a “fixed term” contract. There is in fact no difficulty at all in having a fixed term contract for, say, the Christmas holiday period, providing you only need that extra labour for that particular period. 

 

Some employers also are concerned that if they sign someone up to an agreement they have to offer, if not fulltime work, then absolute certainty as to hours of work.  Again this is wrong.  In some industries, say the viticultural, when the work is available is dependent on, for example, the weather.  As long as it is clearly set out in an agreement, you can offer employment to someone on the basis that they will generally work a certain number of days but that the hours and even days may be dependent on such things as weather or the availability of work. 

 

Another way of dealing with that particular problem is to have a particular worker enter into a casual individual employment agreement.  That agreement simply provides that the agreement between employer and employee comes into effect as and when there is work available that the worker is able and prepared to do.  On that basis an employer could, for example, hire a student for holidays over many years with the one agreement, the same being activated every time fresh employment was made available and accepted. 

 

Now a word or two about fulltime positions.  Many employers have got firmly in their minds that under the new Act probationary periods of employment have been done away with and even if someone is found to be unsuitable for the position there is no simple way for the employer to terminate the relationship.  In fact the Employment Relations Act 2000 specifically provides for “probationary arrangements”.  It is correct that the legislation also specifically finds that the law relating to “unjustifiable dismissal” still applies to probationary arrangements.  However in my view the logical interpretation of that proviso is that an employer must ensure that they give notice prior to the expiry of the trial period that the employee is not meeting required expectations (to give the opportunity of improvement), and ensure that if employment is terminated pursuant to a probationary clause, it is done in a procedurally fair manner. 

 

Of course no employer wants to employ someone only to find that it was a mistake for all concerned.  One way of minimising these difficulties is to, as a standard procedure, require that all job applicants fill in a job application form setting out work experience, relevant medical and other history and, particularly where honesty may be an essential requirement, providing disclosure as to any previous criminal convictions.  This information is often difficult to verify at the time but if subsequently it is found that the employer has been misled then such dishonesty would (in a well drafted agreement!) constitute serious misconduct of a kind that would in all likelihood lead to dismissal.

 

On a different note I would like to thank the many readers of the Hutt News who provided encouraging and positive feedback to me in respect of my last column which dealt with accident compensation.  It confirmed my view that at present the Accident Compensation Corporation is making a determined and conscious effort to remove as many long term Accident Compensation beneficiaries from their entitlements as it can.  A widely held concern is that in many cases this has been done without careful consideration of the individual’s particular medical condition and without listening to the patients’ general practitioner who invariably know a great deal more about their patients than the "experts" contracted by ACC who suggest an optimistic range of occupations (invariably the same!) that could be filled by the unfortunate beneficiary!